FSO (obo FSN) v Secretary, Department of Education

NCAT Administrative and Equal Opportunity|2022-06-29

for the purposes of obtaining evidence or reasonably preparing for the hearing. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: A Reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Background

This was a claim of disability discrimination made by the applicant, FSO, on behalf of her son, FSN, against the Secretary, New South Wales Department of Education (referred to here as 'the Department' or 'the respondent') for discrimination that allegedly occurred whilst FSN was enrolled in a school in the period 12 August 2019 to 10 February 2020.
In these reasons, certain names have been anonymised to protect the identity of the child, who is referred to as FSN. The applicant is identified as FSO and the child's father is referred to as FSP.

The Legislative Framework

Section 49B(1) of the Anti-Discrimination Act sets out what constitutes discrimination on the ground of disability as follows: 49B What constitutes discrimination on the ground of disability (1)A person ( "the perpetrator") discriminates against another person ( "the aggrieved person" ) on the ground of disability if the perpetrator-- (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (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 49L (1) of the Anti-Discrimination Act sets out what constitutes discrimination by an educational authority as follows: 49L Education (1) It is unlawful for an educational authority to discriminate against a person on the ground of disability-- (a) by refusing or failing to accept his or her application for admission as a student, or (b) in the terms on which it is prepared to admit him or her as a student. (2) 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 (b) by expelling him or her, or (c) by subjecting him or her to any other detriment.
For the purposes of this application, if one of the reasons that FSN suffers a detriment is discrimination on the ground of his disabilities, then the claim will be established, as set out in s4A of the Act, which states that: 4A Act done because of unlawful discrimination and for other reasons If-- (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.
Also relevant to this complaint are the Disability Standards for Education which commenced in 2005. They were standards promulgated by the Commonwealth Attorney General under the Disability Discrimination Act, 1992 (Cth). They have been adopted in NSW. The applicant relies on them in her argument that failure to adhere to them in various ways and to fully implement them constitutes discrimination. The Tribunal nevertheless has to consider whether the Anti-Discrimination Act, (NSW) 1977 has been breached.
A policy document of the Department of Education in NSW entitled "Adjustments to teaching and learning" was in evidence. Relevantly, it stated: Adjustments enable students with disability and additional learning and support needs access to syllabus outcomes and content on the same basis as their peers. This personalised approach to teaching and learning delivers rigorous, meaningful and dignified learning programs. Student, parents, carers and schools work together to develop tailored personalised programs to help students get the most out of their school life. … Under the Disability Standards for Education (2005) all principals and teachers have legal obligations to ensure that every student is able to participate in the curriculum on the same basis as their peers. This does not mean every student should have the same experience. On the same basis means that students with disability should have the same opportunities and choices in their education as students without disability. This can be achieved by making reasonable adjustments according to a student's personalised learning and support needs.
The document continues that "reasonable adjustments" may include curriculum adjustments, instructional adjustments or environmental adjustments.
It concludes by setting out how adjustments are determined, stating that: The school learning and support team assists teachers to meet the educational needs of their students and to identify appropriate adjustments that may be needed. Parents and carers have a vital role to play in the work of the school learning and support team by taking part in discussions and planning. Adjustments made in consultation with a student's parents and carers are based on the personalised needs of a student. Consultations may also involve the principal, class and support teachers, professional therapists and community service providers as well as family members and carers. Schools may also consult with specialist staff who can help to identify how adjustments are made. Adjustments must also be regularly reviewed through this consultation process and should be changed or withdrawn if necessary.
The applicant bears the onus of proof, on the balance of probabilities.

Nature of FSN's Disabilities

A report by Dr Cate Hearn, Clinical Psychologist, dated 11 November 2019, was in evidence. It stated that at the time of the report FSN was a nine-year-old boy who had a diagnosis of Autism Spectrum Disorder, Level Two. He was in year four. On testing, findings indicated that his overall level of intellectual functioning fells in the high average range for his age and equal to, or better than, 90% of his peers.
The report also noted that a psychologist, Mr J Hobbs, conducted an assessment with FSN in July 2018 and that he performed in the high average to extremely high range on all indices other than for spelling (53rd percentile) and sentence composition (66%) which were all in the average range. The report of Dr Hearn noted that a comparison of scores over time for his sentence composition and spelling indicated that his sentence composition fell in the six months preceding the test by her on 6,21 and 25 October 2019, his spelling remained consistent and that his written expression performance measures were all "lower than expected on the basis of his intellect."
Dr Hearn diagnosed FSN as meeting the DSM V criteria for a specific learning disorder with impairment in written expression, of a moderate degree, with difficulties in grammar and punctuation accuracy and clarity or organization of written expression.
The report suggested a number of recommendations "as a guide only", including that FSN continue to be provided with teacher aid support and a special education plan, that appropriate technology be provided "to support FSN's writing. Such support: may include the use of a word processing software, or being able to record himself telling stories/completing writing tasks orally, and then listening back and typing out" and that he undertake specific practice in writing "writing simple sentences, and combining simple sentences, and that he be encouraged for effort rather than the finished written product, that he continue to attend an Occupational Therapist for assistance with the mechanics of handwriting and with assessing and improving his core strength to support his body during writing and be re-tested in two or more years' time to measure any improvement in his area of learning difficulty.
That is, this report did not rule out FSN doing any handwriting. It was consistent with his doing some handwriting and some word processing.
The applicant accepted and relied on a document from the Internet entitled "What is dysgraphia?" The article stated that dysgraphia refers firstly to language-based difficulties involved in constructing meaningful and effectively structured expressive writing and secondly ongoing weaknesses in spelling and punctuation that affect a student's capacity to express ideas with clarity. Dyspraxia refers to persistent handwriting difficulties associated with an impairment in motor coordination. That is now called 'developmental coordination disorder'. Dysgraphia can appear as difficulties with spelling and/or trouble putting thoughts on paper. Dysgraphia is a neurological disorder that generally appears when children are first learning to write. Experts are not sure what causes it, but early treatment can help prevent or reduce problems.
The DSM five diagnostic criteria for Autism Include persistent deficits in social communication and social interaction across multiple contexts, as manifested by the following, currently or by history: 1. deficits in social - emotional reciprocity, ranging, for example from abnormal social approach and failure of normal back-and-forth conversation, to reduce sharing of interest, emotions, or affect, to failure to initiate or respond to social interactions. 2. deficits in nonverbal communication communicative behaviours used for social interaction....
FSN has been diagnosed with Level Two Autism. This is said to mean that he requires substantial support and is likely to have marked deficits in verbal and nonverbal social communication skills, social impairments apparent even with supports in place, limited initiation of social interactions and reduced or abnormal responses to social overtures from others, for example a person who speaks simple sentences, whose interaction is limited to narrow special interests, and who has markedly odd nonverbal communication.
Level Two Autism Spectrum Disorder is also characterized by inflexibility of behaviour, difficulty coping with change, or other restricted/repetitive behaviours appear frequently enough to be obvious to the casual observer and interfere with functioning in a variety of contexts, distress and/or difficulty changing focus or action.
A document produced by the school counsellor/school psychologist of "the school" states (in part) that In October 2018, Dr Jackson, Psychiatrist, diagnosed FSN with ASD level two and dysgraphia. A psychologist, Claudia Valenzuela, suggested in 2017 that FSN struggles with emotional control, some aspects of executive functioning, socialization and had elevated scores for depression, anxiety and withdrawal.
Thus, in addition to physical problems with handwriting, there were also questions of emotional regulation that could play a part in FSN's learning.
The Applicant presented the report of Mr Cameron Griffiths, Occupational Therapist, dated 7 February 2020. The report states that: FSN's results on the Beery VMI indicate he has an underlying visual - motor delay which is affecting his handwriting. This delay is mild and has only recently emerged. FSN's reluctance to engage in handwriting tasks may be the reason for his visual - motor skills developing at a slower rate than his peers over the last couple of years. FSN's executive functioning difficulties (identified in a previous assessment) may also be contributing to a decline in performance. For example, FSN is more likely to rush and/or avoid pencil activities due to impulsiveness and poor emotional regulation, making his performance on complex visual - motor tasks more delayed... A combination of delayed visual - motor skills and executive function difficulties (identified in a previous assessment) are likely to be the cause of FSN's handwriting difficulties his ongoing difficulties with handwriting despite receiving intervention in this area suggest this problem is likely to be present throughout his primary school years… FSN's executive function problems (identified in a previous assessment) continue to affect his ability to manage his emotions, inhibit impulses, maintain an organized physical environment, and have a planned approach to complex academic tasks such as writing a long response answer.
This report also suggested that any deficiencies in FSN's performance at school, or decline in his performance, may stem from a number of causes.
FSN's parents acknowledged that he has been diagnosed with dysgraphia and therefore required extensive adult support to assist him in getting his ideas down on paper and that he found it easier to complete work using a computer rather than handwriting. His parents also accepted that he has been diagnosed with dyspraxia, causing extensive difficulties with getting his thoughts on paper. He worked with an Occupational Therapist to support deficits in fine motor skills.
In August 2019 an Interim Behaviour Support Plan was developed by the Benevolent Society for FSN. He was referred for development of a Behavioural Support Plan due to administration of a prescribed medication, Sodium Valproate. This was required particularly when FSN experienced high emotion and anxiety as it was reported that he may lash out at others with behaviours, including hitting and kicking others, throwing or threatening to throw objects, invading personal space, yelling and screaming open in the space of others. The use of Sodium Valproate was approved on a routine basis to support FSN in regulating his emotions during highly stressful situations.
We accept, as both parties accepted, that FSN has been diagnosed with Autism Spectrum Disorder, dysgraphia and dyspraxia. We find that FSN was a person with disabilities for the purposes of the Act.

The Complaint and Defence to it

On 2 October 2020 leave was given for the applicant to proceed with the following Complaint: (a) that the respondent discriminated against FSN on the ground of his disability contrary to s49B(1)(b) of the Anti-Discrimination Act by requiring him to comply with a requirement or condition, namely, to use handwriting in school rather than a laptop; (b) That the respondent discriminated against FSN on the ground of his disability contrary to s49L(2)(c) of the Anti-Discrimination Act by subjecting him to a detriment, namely a decline in his learning outcomes.
The period of the Complaint for which leave was given was 22 July 2019 to 18 December 2019.
The applicant remained unrepresented throughout the proceedings. When FSO first lodged a complaint with Anti-Discrimination New South Wales, her complaint was as follows: the agreed accommodations for my son FSN at "the school" during semester two last year were not implemented resulting in discrimination, as outlined in the Education Standards for Disability 2005. The details of this agreement are included in the attached documentation. Additional documentation is available on request. The impact of the failure is outlined in the attached documentation and includes a FSN's sentence structure assessment declining from 66 to 13th percentile, the equivalent of nearly 3 years below his chronological age; and FSN's handwriting assessment declined from 63rd percentile to the 18th percentile.
The applicant sought to amend her complaint in the terms set out below and was permitted to do so in FSO v Secretary, Department of Education [2021] NSWCATAD 95 (19 April 2021).
The Complaint was amended is set out below. The terms 'PLSP' ('Personal Learning Support Plan,") "ILP" ('Individual Learning Plan" and 'IEP' (Individual Education Plan") are used interchangeably in the Complaint summary and in these Reasons for Decision. The Complaint is as follows: 1. The respondent discriminated against FSN on the grounds of his disability contrary to s49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, FSN will use visual organisers, including concept maps, webs, diagrams drawing to organise information concretely and visually. Writing to consist of 5 paragraphs, retelling a narrative/persuasive text form a short video or picture boom, with limited support. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and FSN's ability. 2. The respondent discriminated against FSN on the grounds of his disability contrary to s49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, FSN to use correct formation and joins to complete weekly handwriting lessons and for him to work on handwriting conventions for simple writing tasks ( e.g. Short answers, writing spelling words or copying what a scribe has written so it is in his own writing) in a 6mm ruled workbook. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and FSN's ability. 3. The respondent discriminated against FSN on the grounds of his disability contrary to s49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, FSN to participate in at least two 20 minute gross motor structured play sessions, with 2-4 peers, each week, organised in conjunction with the SLSO and supervised. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and FSN's ability. 4. The respondent discriminated against FSN on the grounds of his disability contrary to s49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, FSN to be able to communicate any unsolved problems or issues he is having in the school environment in a collaborative discussion, thus allowing him to feel like his problems are listened to and resolved. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and FSN's ability. 5. That the respondent discriminated against FSN on the grounds of his disability contrary to s49L(2)(c) of the Anti-Discrimination Act 1977 by subjecting him to a detriment, namely a decline in his learning outcomes. 6. That the respondent discriminated against FSN on the grounds of his disability contrary to s49L(2)(a) of the Anti-Discrimination Act 1977 by denying him access to the benefits provided by the School, specifically each of the strategies identified in the IEP/PLSP of Semester 2, 2019.
In response, the respondent filed Points of Defence accepting that that FSN has been diagnosed with autism spectrum disorder, dysgraphia and dyspraxia, which are disabilities for the purposes of s4 of the Anti-Discrimination Act.
The respondent accepted that it is the appropriate educational authority, as defined in s4 of the Anti-Discrimination Act and denied that there has been any discrimination of FSN by the respondent.
The respondent denied that it failed to implement the PLSP.
In relation to handwriting the respondent argued that it provided assistive technology such as a laptop, voice to text or voice recording where appropriate, allowed the applicant to handwrite if he expressed a wish to do so, denied that being able to handwrite was a "requirement or condition" or, if it was, that it was reasonable in the circumstances and denied that FSN suffered a decline in learning outcomes in relation to handwriting.
In relation to the allegations contained in Points 2-5 of the Complaint, the respondent submitted that each of the alleged requirements/conditions constituted a SMART goal, developed with other parties including FSN's parents, developed to assist FSN in reaching learning outcomes, but were not a requirement with which he had to comply, or were not conditions or requirements that a substantially higher proportion of people without the disabilities of FSN could comply or, if they were, that they were not unreasonable.
In relation to point 6, the respondent denied that there was a decline in learning outcomes, or if there was, that it was attributable to any act or omission on the part of the respondent, denied that any decline was the result of discriminatory conduct by the respondent and confirmed that the applicant had a number of absences and partial absences from school, attributing any reduction in learning outcomes to those absences from school.
The respondent argued that the respondent did not deny FSN access or provide limited access to the 26 benefits within the PLSP, but fully implemented the PLSP.
The respondent denied that it subjected FSN to discrimination on the basis of his disability or at all and said that there is no factual basis for the allegation of discrimination, rather dissatisfaction with the methods chosen by the school in its implementation of the PLSP.
The applicant filed a document entitled "Applicant Response to Respondent Submission 27 May 2022", providing a lengthy response containing both evidence and submissions.

Arrangements between School and parents

The arrangements between "the school" (referred to here as 'the school') and Mr and Mrs FSO for FSN's education were that at the beginning of every term there would be meetings between FSN's parents, clinicians and school employees to discuss FSN's needs and to agree upon necessary adjustments to facilitate his learning. These adjustments were reflected in written agreements that were signed between FSN's parents and the school.
The documents tendered by the applicant included documents headed ILP feedback, containing feedback from "Brad, FSP, Pauline, Bec, Katie, Cameron, Rachel". These indicate that there was a degree of dialogue between parents, teachers and therapists. The dates of those comments were 12 August and 13 August 2019.
Also in evidence was a summary of a meeting between FSN's parents, Mr Peter Campbell, Director Education, Director Educational Leadership, Lennox Coast Network, New South Wales Department of Education, Ms Lisa Hecimovic, Learning and Well-Being Officer and a minute taker. The meeting appears to have mainly concerned another of FSN and FSO's children, but also referred to FSN. This too shows a degree of dialogue.
Agreements (ILPs or PLSPs) were reached between the school and FSN's parents, with input from his clinicians for the second half of the school year in 2019.
The applicant alleges that the school failed to carry out these agreements in the second half of 2019 in a number of ways: for example, the school agreed that FSN could be absent from school on a Tuesday morning in order to attend a therapy session with a speech therapist to work on his writing. As he would miss science and history/geography as part of this arrangement, it was agreed his work would be sent home, so that he could work on what he missed. Ms FSO's evidence was that FSN's science work was sent home and completed once only, his history work almost never. We accept this evidence from Ms FSO, as she was at home to see what homework was sent home with her son for him to do at home.
The school alleged that FSN had met learning outcomes, leading his parents to ask what evidence was relied upon to reach that conclusion, given that he was missing class and not given any opportunity to do homework which would have brought him up to date with work covered by students in the classroom.
The respondent denied that there was a decline in learning outcome, states that handwriting and sentence structure were not measured in such a way that sufficiently evidence a decline, that any decline is not attributable to any act or omission or discrimination on the part of the respondent and that any lesser learning outcomes are due to the amount of time that FSN spent outside the classroom seeing other clinicians and therapists.
In response, the applicant submitted that FSN saw other clinicians and therapists because the school was unable to provide the relevant service and that seeing other clinicians was done with the agreement of the school and in the context of setting agreed learning outcomes that took into account the work that FSN was doing with his clinicians.
The respondent gave evidence that it regarded the agreed learning outcomes ILPs or PLSPs as "guidelines" to be implemented at the discretion of the teacher, rather than as being mandatory.

Evidence of the Parties

Part of the agreement between FSN, his parents and the school was that individual learning plans would be finalized by a certain date. The respondent complains that there were many changes to the plans.
The evidence shows that there was one change proposed by FSO, namely that FSN use noise cancelling wireless headphones to tell a story out loud, recording it using voice memos on an iPhone and then typing the story, while listening to it on the headphones, pausing and rewinding the audio recording as he went. FSO asked the class teacher, Mr Johnson, whether he would agree to FSN using the headphones. By email or 14 November 2019, Mr Johnson agreed to trial the headphones at school for the remainder of the term and review for 2020.
We find that there is little evidence beyond assertion that "the plans kept changing" apart from at the beginning of the term and as indicated above. There was no correspondence presented by the respondent indicating significant changes to plans that had been agreed. It could have been expected that these would have been documented and new agreements formally reached. In any case, a degree of flexibility indicates responsiveness to the needs of the student and plans had to be agreed upon by the parties, including the school.
The respondent maintains that there was no agreement that there would be one on one support for FSN for 30 minutes, three times per week, as set out in the letter of Mr Peter Campbell dated 12 November 2019.
Ms FSO maintained that this support was to be provided by the LaST (Learning and Support Teacher), but this is denied by Mr Campbell in his letter of 12 November 2019. He notes that the role of the LaST is flexible on the basis that the LaST has some specific involvement with FSN.
As set out in the letter from McCabe Curwood dated 28 May 2020 on behalf of the respondent, the respondent argues that the PLSP are "tools for the teacher to support achievement…:application is based on the professional judgment of the teacher. "The response continues that; "7. Based on the school's assessment of the PLSP and also the independent review conducted in response to the complaint, it has been fully implemented. The 5% completion asserted by the complaint only relates to one of four goals. Even for that goal, it failed to address other evidence demonstrating complete implementation. 8. The decline in FSN's handwriting and sentence structure is largely attributed to the significant amount of school and learning time he misses to attend therapy sessions each week, during school hours. These have notably increased over the four years of his attendance at the school. 9. FSN missed 15 days of school and semester two of 2019. Ultimately, this has impacted the capacity of the school to deliver consistent teaching and learning activities and will affect his overall development."
In relation to the questions regarding how FSN's school report could show outcomes in science, history and geography to the effect that learning goals have been achieved in science, history and geography, the Department states that this assessment is "based on his teacher's observations during class "brainstorming" activities, discussion with his classmates and collaborative research projects". If he was missing work through attendance with therapists and no homework was being sent home for him to catch up on, we do not accept that he met the learning goals for those subjects.
The school noted that comments about FSN's performance in those areas of science, history and geography are not as comprehensive as comments made and reports for other students, given the limited opportunity to assess him in these areas. This again is attributed to his "missed class attendance due to his therapy." The respondent denies that FSN was treated any less favourably than other students or had imposed some unreasonable condition or refused or failed to make any appropriate accommodation for his disability.
A major issue in the matter was a question of how often FSN used a laptop. One of his disabilities was difficulty with handwriting. Clinicians recommended that he use a laptop, so that he could achieve fluency in his thinking without the mechanical difficulty of writing.
The respondent argued that in the classroom there were times that FSN himself wished to practice his handwriting, rather than using a laptop. In Ms FSO's view, he ought to have been made to use the laptop rather than permitted to write by hand, even if he expressed the desire or wish to write by hand.
The Tribunal has considered the question of whether FSN or to have been permitted to use handwriting if he wished to do so, or whether the school should have required that he use a laptop at all times in order not to contravene the Anti-Discrimination Act. His mother expressed the view that the school also have required that he use the laptop at all times. It did not do so.
The therapy sessions that FSN attended included seeing, at various times, a Child Psychiatrist, Clinical Psychologist, Paediatrician/s, Occupational Therapist, Speech Therapist, Podiatrist and Music Therapist.
It was submitted by the applicant that the individual learning plan was realistic and achievable even given FSN's attendance at the therapy appointments. Secondly, that the therapy appointments were directly linked to the achievements of the learning plan goals, which were internal linked to the Curriculum. The applicant argued that the need to attend therapy appointments during school hours was due to the inability of the school to provide specialized support services to FSN. The school did not seriously contend otherwise.
If the school did not accept that the appointments were important and beneficial, then it is difficult to see why they accepted these, given that they entailed time away from school.
In relation to FSN's handwriting disability, the respondent relied on the report of an Occupational Therapist dated 24 January 2020 which, it said, indicated that: FSN's previously diagnosed executive functioning difficulties and recently diagnosed visual - motor delay are likely to be the cause of FSN's ongoing difficulties with handwriting, despite receiving intervention in this area and would suggest this problem is likely to be present throughout his primary school years.
The school noted that in addition to a diagnosis of Autism Spectrum Disorder, FSN has a diagnosis of Dysgraphia and that both of these conditions are lifelong developmental conditions.
The school recommended that FSN would benefit from consistent school attention without the interruption of therapy sessions. It notes that if the pattern of absence continues, FSN will have missed over 1.25 years of school by the time he reaches year 12, as stated in the letter from Mr Peter Campbell, Director, Educational Leadership Lennox Coast Principals network, 2 March 2020.
In her response to this letter, sent by email to Anti-Discrimination New South Wales on 25 June 2020, FSO stated that in addition to failure to achieve the goals in the individual learning plan, she and her husband also complain about the failure to implement appropriate adjustments, as follows: FSN received additional departmental funding through the integrated support funding program to implement the adjustments outlined in the individual learning plan. An SLSO ( School Learning Support Officer) was employed, as agreed, on Monday, Wednesday, Thursday and Friday from 11:30 AM to 2:30 PM. It was agreed that this time allowed for support during lunch play, literacy and recess play four days per week. These hours were changed during term four, without consultation, to three days per week, still covering lunch, literacy and recess. During those times FSN was not absent. In addition to support from the SLSO FSN was also to receive support from the learning and support teacher (LaST). It was agreed that this would occur four times a week, as documented in the individual learning plan, however actually only occurred one day a week. We believe that he did not miss any of these lessons when the LaST was present.
FSO stated that, in her view, the Department was breaching section 49(b)(1)(b) of the Act by imposing the term or condition upon FSN that in order for him to receive appropriate literacy education, he needed to be present at school during all school hours. Due to his disability and the failure of the school to be able to provide appropriate supports to supports to assist him with his disability in the form of psychologists, occupational therapy and speech therapy, FSN was required to seek these supports outside of school, and during school hours.
FSO also stated that, in her view, the respondent was breaching section 49(L)(2) of the Act, as: by not ensuring that he has access to the agreed-upon literacy adjustments, he is being denied the benefit of an appropriately adjusted literacy education. He is also being subjected to the detriment of the assumption the basis of his disability that his limited absences to attend specific appointments during the week to assist him with his disability is what is affecting his literacy progress, rather than a failure to ensure the adjustments are appropriately implemented.
In her email to Anti-Discrimination New South Wales of 3 July 2020, Ms FSO stated that: We disagree with the Department's statement that the goals and strategies are only tools for the teacher to support achievement. The goal is the adjusted learning outcome that the school is working towards. It is not expected that the student will meet 100% of the goals every period, and we are not arguing that the failure to achieve the goals is discrimination. The strategies are the individual supports/adjustment/accommodations, that have been agreed with the parents following input from relevant health professionals to achieve the adjusted learning outcome (goal). We do believe the failure to implement the agreed strategies (adjustments), that were funded by the department to achieve the adjusted learning outcome, is discrimination.
FSO attached a spreadsheet summary entitled "2019 semester to ILP summary FSN" outlining strategies that were agreed, school comment and parent comment, indicating what was, in her view, a very significant gap in strategies that FSN's parents agree were implemented, as had been agreed between FSN's parents and the school.
One significant complaint of FSN's parents is that the LaST position became a job share position, so that the LaST was no longer employed four days a week in that capacity, which meant that FSN's needs required received significantly less attention from the LaST than had earlier been the case. The IEP for Semester 2, 2019 provided for "Team teaching in writing with LaST 4 times per week".
One set of submissions submitted by the applicant was a document submitted on 4 December 2020 "for discussion at the NCAT Directions Hearing "on the basis that "this document has not been finalized". The document is very detailed, setting out extracts from Department of Education documentation regarding adjustments and the goals in FSN's PLSP, the agreed adjustment, evidence relied on by the applicant and why the applicant alleges that there was discrimination.
The respondent relied on the evidence of several witnesses, as set out below.
The statement of Mr Brad Johnson, filed on 27 May 2022, was relied on by the respondent. Mr Johnson was the class teacher for FSN in 2019. He deposed that, for the most part, FSN was a good student, was clever when focused, but easily emotional and could lash out at times. He would also avoid doing work, would opt to do the bare minimum and was sometimes uncooperative, though mainly quite capable of completing tasks. He was supported by the school learning support officer, Ms Naomi Roberts. She worked three days a week at the school and, in Mr Johnson's view had a good relationship with FSN. He stated that in 2019 Ms Margaret Simpson was the LaST but when she went to a permanent class, other casual appointments assisted with the LaST team teaching.
In Mr Johnson's view, he worked carefully with Mr and Mrs FSO and clinicians engaged by them in the preparation of individual learning plans for each semester. He notes that this could be difficult as, he says, Mr and Ms FSO would "often" request changes to the document and the goals within it. Within the period of the complaint, one significant change is probably the use of headphones, to which Mr Johnson agreed.
In terms of handwriting, Mr Johnson's evidence is that in class FSN had access to a laptop, could use it at any point and did so during most subjects. However sometimes he requested to hand write during creative writing activities. Mr Johnson stated that "Any final assessments completed by FSN in handwriting would have been done so at his request. There is no way FSN was ever forced to hand write. He was also a strong-willed student who would not do something that he did not want to do."
In Mr Johnson's view, frequent absences from class to attend other therapists were disruptive, as it took a good part of the day and when FSN returned to class he was often tired and therefore not focused.
In terms of writing, Mr Johnson says that Naomi scribed what FSN wanted to write if he did not want to write or type it. In terms of problem-solving and behaviour management, FSN had a problem-solving plan to complete with Mr Johnson or Naomi and had ready communication with Mr Johnson.
In terms of organized play, FSN had an organized play plan for lunchtime which included playing games, especially touch football. Naomi kept a logbook of FSN's lunchtime activities.
Mr Johnson notes that FSN's behaviour could be volatile and at times he would be responsible for instigating fights in the playground. Teachers provided students with explicit instructions for playing games with FSN. In Mr Johnson's view, there were small improvements in FSN's structured play.
In general, in Mr Johnson's view, the school took reasonable steps to develop an appropriate PLSP for FSN. Mr Johnson stated that: at all times I attempted to implement the strategies discussed. I encountered some difficulty when FSN did not want to engage with the strategies, or when absences impacted FSN's involvement. I also felt that there was some difficulty in implementing all strategies when changes were being regularly requested. Despite this, I implemented strategies to assist FSN in his learning and help him work towards the goals developed and I personally saw improvements in areas of FSN's learning. I do not believe that FSN exhibited a significant decline in his learning outcomes.
Mr Johnson gave oral evidence that was consistent with his statement.
The respondent also relied on a statement from Ms Margaret Simpson, dated 26 May 2022. She was the learning and support teacher ('LaST') at the school, a role she held from 2013. She was working with Mr Johnson's class up until August 2019 and observed FSN in class. She assisted Mr Johnson's class for one hour three days a week in the earlier part of the year, until August 2019. Her assistance in writing tasks was given not only to FSN, but also to "students who were not as academically gifted as FSN," who she described as a "clever and highly capable student."
Ms Simpson says that the primary role of Ms Naomi Roberts, a school learning support officer ('SLSO'), who worked at the school three days a week, was to assist FSN in class. She would work with him one on one in class and would scribe for him if he did not wish to hand write or type. In her view, from paragraph 12 of her affidavit, it was never a requirement for FSN to hand write during writing tasks. The choice to write in his book, use his laptop or ask Naomi to scribe was entirely his choice. FSN was a very capable student who was always given help when and if he needed it.
Ms Simpson also states that during recess and lunch, Naomi supervised FSN in the playground. At times he wished to 'do his own thing' and Naomi would give him distance to encourage independence but she was always close by observing. If FSN was struggling in the playground or in class, Naomi was there to offer support and help resolve problems FSN encountered. She says that: If FSN was struggling whilst I was on playground duty or in class working with him, I would speak to him about his concerns and assist him if I could. However, Brad was a particularly huge help for FSN when he was upset or struggling. I would often witness Brad speaking to FSN when he was upset or distressed… For FSN, not only did Brad follow the PSP closely, but he put in the extra work to ensure FSN was feeling OK and if he wasn't, Brad would do what he could to help. (paragraphs 16-17).
Ms Pauline Houghton, Principal of "the school" until she retired in 2020, also provided a statement, dated 26 May 2022. She was also of the view that the PLSP was appropriately consulted on but there were a number of requirements for changes from FSN's parents. She says that: "I felt that the continuous changes had an impact on FSN as it affected his routine and ability to focus on goals".
She corroborates the care displayed by Mr Johnson, Ms Simpson and Ms Naomi Roberts. In her view, the school complied with the PSP and: "Mr Johnson implemented the PLSP strategies to the best of his ability. Mr Johnson is a dedicated and caring teacher and I believe FSN benefited from Mr Johnson's teaching throughout 2019."
Annexure A to the statement of Ms Houghton includes an email to FSO dated 12 August 2019 stating that she is happy to make the minor changes requested by Mr FSO in FSN's plan goal 1. She notes that goal 2 is related to handwriting and that as stated by Mr Johnson in meeting, he would like FSN to develop handwriting skills learned in copying words into 6 mm books. She suggests that this goal be monitored for further discussion in term four. Annexure B to her statement indicates that she sent the IEP for both FSN and his sibling to FSP and FSO on 19 August 2019.
Mr Peter Campbell, Director Education, Director Educational Leadership, Lennox Coast Network, New South Wales Department of Education, provided a Statement dated 27 May 2022 annexing a series of documents, including notes regarding a meeting on 4 September 2019 to discuss FSN's PLSP and further communication with FSO.
Importantly, at paragraph 35, Mr Campbell states that the integration funding support allocated to a school for a child such as FSN is utilized at the discretion of the principal. He says that "this funding was used by the school in various ways at the discretion of Ms Horton, including the casual employment of an SLSO for FSN".

The Law

In Walker v Victoria [2011] FCA 258 at [189] - [194], Tracey J referred to some of the significant authorities in relation to how the statutory concepts involved in indirect discrimination are applied, referring to Sluggett v Human Rights and Equal Opportunities Commission [2022] FCA 987; (2002) 123 FCR 561 at 577 as indicating that the terms "requirement or condition" import "the notion of compulsion or obligation" and Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 and Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349 as to the need not to construe the terms "requirement or condition" too narrowly, per Dawson and Toohey JJ at 394.
Waters also establishes that the 'requirement or condition' need not be explicitly imposed, but may be impliedly imposed, through conduct: at 360, per Mason CJ and Gaudron J; at 393, per Dawson and Toohey JJ; at 407, per McHugh J.
In Hurst v Queensland [2006] FCAFC 100, a "requirement or condition" that was imposed was the requirement that a student learn without the assistance of an Auslan interpreter or Auslan teacher.
In this case, the "requirement or condition" is said to be the requirement that FSN learn without the supports and adjustments that had been agreed with his parents.
As Hennessy LCM stated in CEU v University of Technology Sydney [2017] NSWCATAD 323 at [8]: The term "detriment" has a relatively broad meaning. In A v Director-General, Department Education and Training [2008] NSWSC 1091 at [32] - [35] the Supreme Court held that "being in a school environment poisoned by racial harassment" could be a detriment. Similarly, non-compliance with a policy, failure to implement Departmental recommendations or failing to adequately respond to an incident or allegation could be characterised as a detriment.
See also Bogie v The University of Western Sydney (1990) EOC 92-313 and Burns v Sunol [2014] NSWCATAD 62 at [34]) to the same effect.

Consideration and Findings

We find that the IEP/PLSP was more than a "tool" for the teachers or a "guideline", it was an agreed commitment by the parties and a representation by the school that the agreed strategies were adjustments were required in order to ensure that FSN's learning needs were met.
There is no indication in the evidence before us, including the Disability Standards 2005, as adopted in NSW and policy documents flowing from them, that the IEP/PLSP could be disregarded or only partially implemented. On the contrary, it appears from the policy documents that were in evidence that the IEP/PLSP was a commitment as to what was required for FSN's learning needs. We therefore consider below the implementation of the individual strategies agreed in the IEP/PLSP for the second half of 2019.
The Tribunal has considered the question of whether FSN or to have been permitted to use handwriting if he wished to do so, or whether the school should have required that he use a laptop at all times in order not to contravene the Anti-Discrimination Act. His mother expressed the view that the school also have required that he use the laptop at all times. It did not do so.
We accept the evidence of Mr Brad Johnson that there were times that FSN wanted to do handwriting. We accept that evidence as Mr Johnson was the classroom teacher of FSN at that time and was in the classroom to observe this.
We are not satisfied that it constitutes discriminatory conduct to allow FSN to hand write some of his work if this was the expressed wish of FSN. There are certainly skills that are required in handwriting that are different from skills acquired on a laptop and each of those skills, both handwriting skills and use of laptop, may assist FSN in his learning outcomes.
It is to be noted that the report of Dr Cate Hearn, Clinical Psychologist, dated 11 November 2019, recommended that FSN undertake further work on his handwriting with the assistance of an Occupational Therapist, to improve his handwriting skills.
Nor is permitting FSN to handwriting at times a breach of the agreements reached between the parties as the agreement was that the laptop would be used "when needed". FSN's parents interpreted this as meaning "all the time" and the Department saw it as meaning "some of the time".
We find that a laptop was reasonably available to FSN at the relevant times and that it did not constitute less favourable treatment of him or imposing a test or requirement that he use handwriting to permit him to handwrite at times when he wished to do so.
Approval by the school was given for FSN to attend therapy appointments (outside of school but within school hours) at the same meeting as the individual learning plan goals and accommodations were agreed, so the individual learning plan document was developed with full knowledge and approval of FSN's attendance at other appointments.
The applicant argued that specific funding was allocated to assist FSN with his learning, but that although this funding was allocated to him, he received far less time than he should have, based on the amount of funding. In response, the respondent says, for example, that he didn't get any less time than any other student. This response overlooks the fact that specific funding was provided for FSN's learning and that in order to achieve similar outcomes to other students, he may require more time than other students with such assistance as had been funded. There appears to have been a lack of understanding at the classroom level as to the extent of assistance with which he should have been provided.
Mr Campbell's response that the deployment of a LaST or SLSO is "at the discretion of the principal" does not absolve the respondent from responsibility to ensure that the principal acts in accordance with agreements reached about adjustments for a particular student.
We find that the agreement of the school as to the extent of support that FSN would receive from an SLSO and a LaST was set out in IEP/PLSP agreed by the school with FSN's parents (for example "Team teaching in writing with LaST 4 times per week") but was not adhered to by the school. It is clear from the statement of Ms Margaret Simpson that she was employed only three days per week and she did not claim in her statement that she engaged with FSN in "Team teaching in writing 4 times a week" with FSN, as had been agreed in the IEP.
The words "Team teaching in writing with LaST 4 times per week" are in themselves somewhat vague. They do not suggest that the whole of the time of a LaST will be spent on FSN four times per week. The time that is given to FSN is to be given, it is said, in the context of team teaching. On the other hand, the quantification, of "four times per week" was not adhered to. Nor was there any engagement with FSN's parents to vary that agreement if four times per week become impossible due to resource allocation or for other reasons.
Whilst the extent of the involvement of the SLSO with FSN was not quantified in the IEP in the same way that the support provided by the LaST was set out in the IEP, a perusal of the IEP shows that it was agreed that the SLSO would be quite involved in FSN's education and in working with him, in relation to various tasks. Whilst the SLSO had some involvement with FSN, we find that the SLSO did not work with FSN to the extent set out in the IEP.
There was an agreement that FSN would participate in one typing lesson per week on typing.com via his account, with his completion, accuracy and speed to be monitored. Although the comment from the school about this indicates some typing was done, FSO's evidence is that the typing report indicated that only five typing lessons were undertaken for the semester, rather than one per week. We accept the evidence of Ms FSO that significantly fewer lessons were undertaken than had been agreed to in the IEP/PLSP.
Failure to adhere to the agreement as to what would constitute reasonable adjustments to FSN's learning, in the form of funded assistance, subjected him to a test that impacted upon him differentially, namely that he absorb and learn in the same way as other students without his disabilities for the time he did not have agreed support in the form of the attention of the LaST teacher or the SLSO.
The IEP for the second part of 2019 set out what was agreed to be the necessary supports and adjustments for FSN to achieve agreed learning outcomes. By signing off on the document and not at any stage formally seeking to change the IEP, the school was attesting that the agreed upon adjustments were necessary and appropriate for FSN to achieve agreed learning outcomes. They were more than a guideline, they constituted a binding agreement between FSN's parents and the school as to the ways in which FSN's learning would be individually tailored for him. If the school sought to depart from them, then the school ought to have formally engaged with FSN's parents about that intention.
We are satisfied that the failure to provide the amount of support that was approved by FSN's clinicians, parents and teachers in the IEP impacted differentially on him, to his detriment, constituting discrimination against him. It was not reasonable in the circumstances that he did not receive the amount of support set out in the IEP, given the agreements as to support that had been reached with FSN's parents, clinicians and teachers.
We find that the PLSP/IEP was not fully implemented. There are some examples of this, such as the failure to send homework home with FSN. Sending homework home to be done regularly would have enabled FSN to catch up on any learning missed due to attendance upon clinicians. No USB stick with samples of his handwriting was received by his parents, to enable monitoring by an external therapist, as agreed.
The changed employment of the SLSO and LaST and resulting reduction in time spent with FSN are also examples of failure to fully implement the IEP/PLSP.
The IEP/PLSP was partially implemented. Given the 26 necessary learning strategies were agreed upon by FSN's teachers, parents and clinicians, the failure to fully implement all of the agreed strategies constitutes discrimination, in imposing a requirement that FSN achieve reasonable learning outcomes without full implementation of the PLSP.
If the school did not intend to regard the agreement as binding, it ought to have clearly indicated that to FSN's parents at an early stage, so that they could choose other educational options for their son if they saw fit.
Some of the measures used in the SMART goals are difficult to quantify and assess. We are nevertheless satisfied that FSN's learning outcomes were worse than they would otherwise have been if the strategies that had been agreed upon as being appropriate and adapted to FSN's learning needs were fully implemented.
In making these findings we are conscious that FSN had a number of learning and other difficulties and that these may also have contributed to his learning outcomes. However, we find that discrimination in failing to make available all reasonable learning adjustments as agreed was a reason, a causal factor, in FSN not achieving the learning outcomes that were reasonably forecast in the PLSP/IEP. It was a causal factor in some of his abilities slipping behind previous measures, as found by Dr Hearn, whose opinions we accept.
We also find that, as submitted by the respondent, Mr Johnson, Ms Simpson and Ms Roberts were all extremely well motivated, professional and caring in their teaching of FSN. They were highly attentive to him. We accept the assessment of Ms Pauline Houghton, Principal, in that regard, corroborated by the affidavits of Mr Johnson and Ms Simpson and the plethora of emails and other documents that were in evidence exchanged between the parties. The finding that there has been discrimination does not reflect adversely upon the sterling efforts of Mr Johnson, Ms Roberts or Ms Simpson. The applicant also attests to their skill and hard work with FSN.
Rather, the finding of discrimination is a finding arising from the nature of the agreements reached in the IEP/PSLP and failure to ensure full implementation of those agreements. This may have been an issue of the availability of teaching resources and how those resources (including people) were deployed, but not to implement the IEP/PLSP without formally varying it constituted discrimination, imposing a test, namely that FSN reach the learning goals without the assistance that the parties had agreed was necessary in order for him to have an equivalent opportunity to achieve those learning goals to the opportunities that other students without FSN's disabilities had.
If the number of FSN's therapy engagements outside of school were indeed an issue, as claimed by the respondent in these proceedings, it ought to have been raised with FSN's parents after the IEP/PLSP was agreed and the plan varied or a different plan agreed to for the second half of 2019. There is no evidence that this was raised with FSN's parents prior to or during the term.
The extent of FSN's engagement with clinicians and therapists outside the school was agreed with the school as being appropriate and necessary for him to achieve the learning outcomes sought. To subsequently attribute any reduction in learning outcomes to the extent of reliance on those clinicians is inappropriate in the context of a joint decision as to what was necessary to FSN's learning as embodied in the IEP/PLSP.

Remedies

In submissions filed on 23 March 2021, the applicant provided details of remedies ought, including payment of the sum of $14,383.82, being the cost of the speech therapy, occupational therapy and psychology support expenses in the period 23 July - 13 December 2019, orders for one-on one support for FSN to address his dysgraphia, for all staff at "the school" to attend training on discrimination education, delivered by an external provider, replacement of Mr Peter Campbell as Director of Educational Leadership and an apology to FSN and his family for discrimination experienced by FSN.
We decline to order a refund of the amounts paid by FSN's parents for his speech therapy, occupational therapy and psychology support expenses as these expenses were voluntarily incurred by them, would have enhanced FSN's abilities and do not flow from the discrimination we have found occurred. Rather, that expenditure would have expanded FSN's educational opportunities and formed part of the agreement reached with the school. For the purposes of s108(2)(a) of the Act, that expenditure does not constitute "loss or damage suffered by reason of the respondent's conduct".
We are aware that the Principal, Ms Houghton, has retired and understand that FSN is no longer at the school. It is, however, possible that is attending attended another public school. These matters have been taken into account in considering appropriate remedies.
We propose to order an apology to FSN and his parents pursuant to s108(2)(d) as they have sought such an apology and we have found that there has been a contravention of the Act that has had a detrimental effect on FSN.
No evidence was supplied by the respondent as to whether any of the teachers at the school had undergone training in relation to the Disability Standards 2005 and policies of the Department of Education in relation to students with disabilities, although it appears from evidence submitted by the applicant that the respondent offers such training. The extent to which such training is actually undertaken by teachers across schools in NSW cannot be determined from the available evidence.
In light of our findings, the question of the extent of training of teachers, including principals in relation to issues of disability as relevant to education has great significance for the education of other children and young people with disabilities, apart from FSN. For that reason, we have decided to make orders pursuant to s108(3) of the Act, in relation to the training of teachers other than those teaching or who have taught FSN, as set out below.
We decline to make any further or other orders, except as set out below.

Orders

In light of the above matters, the following Orders are made: 1. The respondent shall, within 30 days of the date of this decision, issue an apology by letter to FSN's parents and to FSN, in such terms as they see fit, for regarding the IEP/PLSP for the second half of 2019 as a "guideline" only that could be varied without agreement with FSN's parents, treating professionals or with FSN and reaffirming their commitment to excellence in the teaching of students with disabilities. 2. The respondent shall ensure that, within a period of 12 months from the date of this decision, teachers at "the school" who teach students with disabilities will undergo formal training in the standards and departmental policies applicable to teaching students with disabilities if they have not already undergone such training. 3. If FSN is, by 13 February 2023, a student in a public school in NSW, then, the respondent shall review by Monday 10 April 2023 whether teachers in that school (including the principal), have undergone adequate training in the standards and departmental policies applicable to teaching students with disabilities and ensure that, if not already undertaken, such training is provided to them as the respondent sees fit, within 6 months of the date of this decision. 4. The respondent shall, within 6 months of the date of this decision, review the extent to which all teachers employed by the respondent in New South Wales have undergone adequate training in the standards and departmental policies applicable to teaching students with disabilities and undertake a program of any necessary training to ensure that teachers (including principals) who are responsible for the education of students with disabilities have undergone training in the standards and departmental policies applicable to teaching students with disabilities. 5. If there is any application for costs, it is to be made within 14 days of publication of this decision, failing which there shall be no order as to the costs of this application. 6. The disclosure of the name of the applicant, her spouse or any child mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited, except where such disclosure is made for the purposes of obtaining evidence or reasonably preparing for the hearing. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: A Reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2023

At a glance

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