FVN v Secretary, Department of Education [2023] NSWCATAP 301 | Case summary

FVN v Secretary, Department of Education [2023] NSWCATAP 301 | Case summary | Zoe

[9]

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. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. (3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. (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 interpretive, 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 that disability. (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

[14]

The Appellant's case before the Tribunal

Without seeking to be all inclusive as to the nature of the case put by the Appellant below, its essential features can be described as follows.
First, the Appellant contended that the Respondent was in contravention of s 49L(2)(a) by denying the Appellant's son access, or limiting his access, to flexible home learning, being a benefit provided by the Respondent. The Appellant submitted that in denying her son such benefit, the Respondent discriminated against the Appellant's son on the ground of the disability of an associate, being the Appellant's mother. Such disability being her medical condition.
Secondly, the Appellant contended that the Respondent contravened s 49L(2) by unlawfully discriminating against the Appellant's son on the grounds of the disability of his mother in not marking his attendance record as 'flexible' or 'leave' or 'absent/justified'.
In this regard, the Appellant contended that the failure to so mark his attendance record could be regarded as subjecting the Appellant's son to 'any other detriment'.
The Appellant relied upon s 49B(1)(a) and put forward as a relevant comparator the case of the student whose parent is undergoing chemotherapy and is allowed 'flexible learning'. Secondly, the Appellant put forward the case of the student who with the discretion of the principal may have their records marked as 'leave' in order to attend a sporting or arts event.
For example, the Appellant in her submissions stated: [The Respondent] discriminated on the grounds of disability in terms of ADA 49B(1)(a) by treating her as a person with a disability due to Diabetes less favourable than a person with a disability due to other illness, such as cancer (WS 53) or a person with no disability.
The reference to 'WS 53' is a reference to Ms Parker's evidence as to a student being granted flexible learning because such student resided with a parent going through chemotherapy. There was evidence that a principal had a discretion to exempt students from school in such circumstances.
The case of the Appellant, in essence, as we understand it, was that Ms Parker put up obstacles to accepting the Appellant's application for flexible learning, allegedly based upon the Respondent's guidelines, when in reality she or the Respondent had a different approach to the Appellant compared with the case of a parent undergoing chemotherapy who is immune-compromised as a result.
Thirdly, the Appellant contended that she had been discriminated against contrary to s 49L on similar grounds to that referred to above, by the Respondent refusing to provide her son with flexible home learning services or by the terms on which the Respondent provided such services. The Appellant contended that in this regard education services are provided both to the child as a minor but also to the parents who are legal guardians and responsible for that minor.

[16]

Ground 2

This ground focuses upon paragraph [32] of the Decision.
In relation to whether or not there was a breach of s 49L(2), the Tribunal stated that it was necessary to examine the requirements of compulsory education under the Education Act: [15].
The Tribunal referred to s 21B of the Education Act which provides, relevantly, that the Appellant's son was of 'compulsory school age': [16]. Section 21 of the Education Act states that it is the duty of the parent of a child of compulsory school age to cause the child to be enrolled at and to attend school, or to otherwise be registered for homeschooling: [17].
The Tribunal pointed out that s 25(1) of the Education Act allows the Minister of Education to grant certificates exempting a child from compulsory schooling requirements if satisfied that conditions exist which make it necessary or desirable to grant such a certificate: [19]. The Tribunal then referred to the exemption for parents from compulsory attendance of students under s 23(1)(a) of the Education Act if they comply with s 23(7).
We note we have set out the relevant sections of the Education Act above.
The Tribunal then made the following observations in respect of the medical certificate of Dr Overland (at [27]): The letter of Dr Overland does not say that the child cannot attend school, only that Dr Overland supports the request of the parents to supervise their son's education at home because the child's mother is immune compromised. The certificate doesn't even go so far as to say that the child should not attend school because of the mother's condition, but rather that Dr Overland supports the request for the parents to supervise the school's education at home.
Accordingly, the Tribunal found that Dr Overland's medical certificate did not comply with the requirements of s 23(7) of the Education Act: [28].
The Tribunal then referred to s 24 of the Education Act being the requirement that a principal of a government school keep a register of attendance and when required to do so must furnish information regarding attendance: at [29]. The Tribunal stated that the request of the principal for the medical certificate and the finding that the medical certificate was not valid was consistent with the school's obligation under the Education Act: at [30].
The Tribunal then quoted s 54 of the AD Act which provides as follows: (1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of - (a) any other Act, whether passed before or after this Act, (b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act, …
The crucial finding made then by the Tribunal at [32] was as follows: 32 We do not find that the school breached its obligations under s 49L (2) of the AD Act, as the schools requirement to attend school was consistent with their obligations to comply with the Education Act. The applicant chose to keep the child at home because she felt it was justified.
In paragraph [32], the statement by the Tribunal as to 'the school's requirement to attend school' we take to be a reference to the Respondent's requirement that the child attend school. We note that the Tribunal found that the Respondent in 'requiring the Appellant's son to attend school' was consistent with their 'obligations to comply with the Education Act'.
Section 54 of the AD Act does not provide a defence merely because conduct is 'consistent with' another Act. For example, an employer may terminate an employee's employment 'consistently with' their obligations under workplace legislation or industrial awards, but this will not provide a defence to a claim of unlawful discrimination under the AD Act: see for example, Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237. What s 54 requires is that the conduct 'was necessary for the person to do in order to comply with a requirement of' 'any other Act'.
This is of significance here because the Tribunal has overlooked s 25 and s 119 of the Education Act and the evidence, which we refer to later, as to the way in which s 25 and s 119 has been and is utilised to enable principals and other officers of the Respondent to grant exemptions to the requirement to attend school under the Education Act and to authorise the provision of flexible home learning services.
The Appellant tendered before the Tribunal the Respondent's 'Exemption from Schools-Procedures' document. Clause 1.2.1 states that the power to grant a certificate of exemption under s 25 is delegated subject to certain procedures and conditions to officers of the Respondent including principals. According to clause 2.1.1 of this document, principals, as well as other officials of the Respondent, can grant exemptions up to 100 days in a 12 month period for any one student due to 'exceptional circumstances (including the health of the student when sick leave or alternative enrolment is not appropriate)'.
Based upon s 25 and s 119 of the Education Act, the Respondent by its servants and agents had the legal ability to grant exemptions from the compulsory attendance requirements under the Education Act. Further, and in any event, there was no legal impediment to the Respondent providing flexible home learning to the Appellant's son.
When the above was put to Ms Bulut, Counsel appearing for the Respondent, Counsel did not dispute the proposition but sought to contend that the Tribunal at [32] was not making a finding of a defence pursuant to s 54 of the AD Act, it was merely observing that the way in which the Respondent behaved towards the Appellant's request for flexible learning at home was consistent with the Education Act.
Given the concession made by Counsel for the Respondent that s 54 of the AD Act is not applicable as a defence, we do not strictly need to deal with the ground of appeal.
We note, however, that the Tribunal at [32], after quoting from s 54 of the AD Act, states that 'We do not find that the school breached its obligations under s 49L(2) of the AD Act as the school's requirement to attend school was consistent with their obligations to comply with the Education Act'.
In our view, to the extent that this is a finding that by reason of s 54 of the AD Act, the conduct complaint of is not unlawful because it was necessary in order to comply with the Education Act, we find that the Tribunal was in error.
Accordingly, we uphold ground 1 and find that it was not 'necessary' for the Respondent to refuse to provide flexible home learning and to require the Appellant's son to attend school in order to comply with the requirements of the Education Act.

[17]

Ground 3

The Tribunal also formed the view that the Respondent had not contravened s 49L of the AD Act for the reasons set out at [33] - [35]: 33 Further, the applicant has failed to provide evidence of differential treatment. None of the relevant comparators were a student whose parents had no disability, or in one case, they had a different disability, being cancer. The applicant chose to keep her son home from school because she believed it was reasonable and believed that the school was required to support her choice. 34 Neither the applicant nor child were denied the benefit of attending school. The student was able to attend school, or the applicant could have applied for home schooling. Home learning assistance was not something available to students at large. In that regard, this is not a case of denial of access to education. 35 In summary, having considered the parties submissions we are not of the view that the respondent contravened s 49L of the AD Act.
We have previously set out in summary form some key aspects of the Appellant's case before the Tribunal below. In essence, the Appellant complained that the Respondent treated the Appellant's son less favourably than a child whose parent had a different disability, such as a parent undergoing chemotherapy by not providing flexible home learning in circumstances not materially different.
Secondly, the Appellant contended that the Appellant's son was treated less favourably than a parent of a child that has no disability but is granted leave to travel or participate in sporting events and thereby is not threatened with legal consequences for not attending school in person.
In essence, the Appellant in this ground contends the Tribunal at [34] failed to come to terms with the essence of the Appellant's argument. The contention was not that the child was denied the benefit of attending school but was denied the benefit of flexible home learning. The fact that home learning assistance was not something available to students at large does not provide a defence to the claim as put by the Appellant.
As the Appellant put it at [20] of her written submissions: (a) Whether the student was able to attend school or not is irrelevant. The issue is whether they could do so as safely as a child whose parent was not disabled. In this case, medical evidence and opinion was that the Appellant's child was at higher risk of injuring his mother than other children whose mother was not a high risk. (b) Making education available only if the child attended in person, when a viable, safer alternative was available and requested, is analogous to making education available only in classrooms that are not accessible by wheelchair. It would be no answer to a claim that such conduct was discriminatory to say "Neither the applicant nor child were denied the benefit of attending school" because children in wheelchairs could look in through a window. (c) The fact that "could have applied for home schooling" is an irrelevant consideration. Again, this would be no defence to a claim of discrimination based on wheelchair access. (d) It is not true that "Home learning assistance was not something available to students at large", the Principal had a discretion to exempt students from school, see Attendance Policy 4.2.9: see page 4 of Affidavit of Peter Vogel, 30 May 2020: Ms Parker gave evidence that home learning was available to children whose parents were undergoing chemotherapy (see witness statement of Kathleen Parker 16 May 2020 [53]). In cross-examination she confirmed "Regardless of whether there was a pandemic or not, schools have requests like this from medical specialists on behalf of their patients undergoing chemotherapy for children to stay at home and do home learning during that period (see Transcript 41.15) … The child would have been granted home learning regardless of whether it was a pandemic or not (see Transcript 41.37).
The Respondent contends that no question of law was involved and leave to appeal is required which should not be granted. The Respondent focuses upon the sentence that 'the applicant has failed to provide evidence of differential treatment'. According to the Respondent this is a finding of fact and should not be disturbed on appeal.
According to the Respondent, the case of the child who is granted flexible learning because the parent was undergoing chemotherapy treatment was not a proper comparator. The Respondent submits that in that case, 'the child obtained a valid medical certificate to explain their absence'. Further, the Respondent contends that the Appellant did not establish that the differential treatment (which was denied) was because of the Appellant's disability (or particular disability). In conclusion, the Respondent submits that the Appellant had failed to establish differential treatment 'on the evidence'.
We agree with the submissions of the Appellant. The brief reasoning of the Tribunal, in our view, does not grapple with the case as put by the Appellant.
First, the Tribunal stated at [33] that none of the relevant comparators were students whose parents had no disability. However, the Appellant put forward the case of a student who is granted leave to attend elite arts or sporting events and whose record is marked 'L' and who is thereby exempted from the obligation to attend school in person under the Education Act.
The case of the Appellant was that the Respondent could have similarly granted an exemption for exceptional circumstances, being the Appellant's medical condition. The Appellant's case was that there was no material difference in the worthiness of the two claims upon the exercise of the Respondent's discretion to grant leave of absence.
We note that this contention was not dealt with by the Tribunal.
Secondly, the Tribunal's conclusion at [34] was that 'this is not a case of denial of access to education' because neither the Appellant nor her son were denied 'the benefit of attending school'. In our view, the Tribunal failed to deal with a central contention that the Respondent was in breach of 49L(2)(a) by denying the Appellant's son access, or by limiting his access, to flexible home learning, being a benefit provided by the Respondent.
Further, the Tribunal, in our view, has not dealt with the other central contention of the Appellant that the Respondent was in breach of s 49L(2)(c) by subjecting the Appellant to the detriment of threatened prosecution or court orders under the Education Act in circumstances where other persons in not materially different circumstances were not subjected to such a detriment.
The Appeal Panel in FHH v Port Stephens Council [2023] NSWCATAD 239 stated at [36] - [37] as follows: 36 We accept that the contentions as put by the Appellants could amount to the raising of questions of law. The failure to deal with relevant and available contentions of a party in litigation will amount to an error of law. 37 In Yong v Antworks Pty Ltd [2016] NSWCATAP 14 at [31]-[34] the Appeal Panel cited the following authorities in support of the above proposition: In Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority 24 NSWLR 156 at 186 Handley JA stated: The duty of a judicial officer to hear and determine a claim made in judicial proceedings conducted before that officer is also an incident of the judicial process. Since breaches of the duty to give proper reasons and to observe procedural fairness involved errors of law, there seems every reason to hold that a breach of the duty to hear and determine a claim made in judicial proceedings also gives rise to such an error. In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Gaudron J in context of the Migration Act (Cth) discussed a constructive failure to exercise jurisdiction stating: It follows from what has been written above that the failure of the Tribunal to make findings with respect to a particular matter may, at the same time, reveal failure to exercise jurisdiction, whether actual or constructive, and, also, failure to conduct a review as required by the Act. In Fox v Australian Industrial Relations Commission [2007] FCAFC 150 Marshall and Tracey JJ stated at paragraph 38: In the present case the complaint is not that the full bench ignored the evidence but rather that it did not deal with an important ground raised by Mr Fox. This case is more akin to one where there is a failure by a Tribunal to deal with necessary issues. Such a failure constitutes a jurisdictional error. In Khan v Kang (supra) the Appeal Panel found that the Tribunal had made an error of law by failing to consider a claim made by Mr Khan. The Appeal Panel observed at [28] as follows: It is possible to characterise what occurred either as a failure to give reasons for the Tribunal's decision or a failure to exercise the jurisdiction conferred on the Tribunal and invoked by the appellant in relation to this claim in respect of excess timber - see Waterways Authority v Fitzgibbon [2005] HCA 57 at [129] - [130] and Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [42]. Whichever way it should be characterised, the Tribunal's failure to consider such a claim at all in its Reasons for Decision amounted to an error of law by the Tribunal below.
In our view, ground 3 does raise a question of law. The statement that 'the applicant has failed to provide evidence of differential treatment' cannot be divorced and stand alone from the balance of the reasons of the Tribunal which as explained above demonstrate a misapprehension of the central contentions put by the Appellant.
Accordingly, we uphold ground 3 of the appeal.

[18]

Ground 4

This ground focuses on the question of the proper construction of the term 'services' when used in s 49M of the AD Act. This involves a question of law.
The Appellant contends that under s 49M the Respondent provided education services, including flexible home learning, both to the Appellant's son and the Appellant. The Tribunal appears to have rejected this proposition. The Tribunal stated at [37]: 37 The applicant makes submissions that 49M of the AD Act extends to cover herself. In our view this ground was misconceived.
It is less than clear whether any of the reasons which follow this statement are in support of the conclusion that s 49M of the AD Act does not extend to the Appellant herself.
At [39] - [40] the functions of the Minister and the principal objects of the Education Act are referred to. The Tribunal then concluded at [44] that the 'Education Act does not extend so far as to require the Respondent to provide services to a parent'.
We agree with the Appellant's submission that this is an irrelevant consideration in respect of the question as to whether or not s 49M of the AD Act encompasses the provision of flexible home learning services to a parent through the provision of such services to the parent's minor child.
Whether under the Education Act there is a requirement to provide flexible home learning services is not to the point. It is clear that the Respondent, by the exercise of delegated authority under s 25 and s 119 can grant exemption from attendance at school face-to-face and can also provide flexible home learning services to the parents' child.
The other possible statement of reasons from the Tribunal is contained at [42] and [43] as follows: 42 In IW v City of Perth (1997) 191 CLR 1, involved a question on appeal to the High Court as to whether the City of Perth unlawfully discriminated against an Incorporated Association, by refusing planning approval for the use of premises for persons with HIV. Gummow J stated at [44]: In the present case, the Council did not refuse to provide services. It did not, for example, refuse to accept or to deal with the application by PLWA in respect of the premises at Walcott Street, North Perth. Section 66K(1)(a) could have no application. It deals with refusal to provide services. Accordingly, the appellant's primary submission should be rejected. 43 Similarly in this case, the respondent has done what is required of them and made schooling available for the child. The applicant always had the option of seeking to register her child for home-schooling. There is no requirement under the Education Act to provide home assistance so that a child may study from home.
In our view, the decision of IW v City of Perth (1997) 19 CLR 1 is distinguishable and not relevant to the question of statutory construction before us. As stated by the Tribunal that case concerned a claim of unlawful discrimination on the grounds of disability against the City of Perth in refusing planning approval for the use of premise for persons with HIV. The High Court carefully reviewed the relevant legislation governing the Council of the City of Perth and its obligation to deal with development applications.
It was in that context that Gummow J at [44] dealt with the claim of a refusal to provide 'services'. His Honour was of the view that at best the services provided by the City of Perth in that situation was the service of dealing with, by accepting or refusing, applications by PLWA in respect of the premises in question. The notion of services under the relevant legislation could not extend to a service with a particular outcome, such as, for example, granting planning approval for the use of premises for persons with HIV.
Accordingly, in the reasons of Gummow J, because the City of Perth had provided the service of accepting and dealing with the application, there could be no relevant refusal to provide 'services'.
In our view, the situation here is quite different. Flexible home learning was a service that was provided by the Respondent. The Respondent accepted on appeal that the Respondent was a 'public authority' providing education services within the meaning of section 4 to the Appellant's son, but not the Appellant.
In our view, the critical question is not the nature of the services being provided - namely, flexible home learning - but whether the services are being provided to the parents of the children enrolled in schools conducted by the Respondent. The decision of IW v City of Perth does not assist in this question.
Similarly, the reasoning at [43] does not assist in respect of the question of statutory construction before us. The fact that the Respondent may have done 'what is required of them and made schooling available for the child' and the fact that the Appellant always had the option for 'home schooling' and that there is no requirement under the Education Act to provide 'home assistance' does not answer the question in respect of whether or not the Respondent discriminated against the Appellant.
The process of statutory construction begins with a consideration of the text: see Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503 at [39]. This requires consideration of the ordinary and grammatical meaning of the words by reference to all the provisions of the statute and its purpose: see SZTAL v Minister of Immigration and Border Protection (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ; see also Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47].
We note that one of the underlying purposes of the AD Act is to render unlawful discrimination on the grounds of disability in certain circumstances and to provide equality of opportunity between all persons: see the long title of the AD Act.
Further, we note that because the AD Act is remedial and beneficial, 'services' in s 49M must be given a liberal rather than a constrained interpretation: Khoury v Government Insurance Office of NSW (1984) 165 CLR 622 at 638; Dionysatos v Acrow Formwork & Scaffolding Pty Ltd [2015] NSWCA 281 at [12]; Waters v Public Transport Corporation (1991) 173 CLR 341 at 359.
A similar question arose in Brindabella Christian Education LTD ACN 100 229 669 v Respondent XD 561 of 2021 [2022] ACAT 37. In that case there was a claim under the Australian Consumer Law that certain terms of a contract with a school were unfair. The Tribunal dismissed the school's argument that the services were provided to the child and not the parent making the claim stating at [27] - [30] as follows: 27. In the alternative the school argued that the educational services supplied by the school were not for the personal use of the persons who acquired them but rather for that of their children and therefore the second limb of section 23(3) was not satisfied. 28. I did not accept the logic of that argument. Section 23(3) only requires that the services be acquired "wholly or predominantly for personal, domestic or household use or consumption". It does not require that they be for the personal use of the individual who acquires them, although clearly it must be for the personal or domestic or household use or consumption of someone. The interpretation proposed by the applicant is not consistent with the natural meaning of the words used. 29. The language of section 23(3) is sufficiently broad to include services a parent may acquire for the use of their minor children. It is the parent and not the child who is a party to such a contract. If the applicant's argument were accepted then whenever a parent bought services or goods for the personal use of their child, be that orthodontic services or school shoes, they would be denied the protection of section 23. It is not plausible that such transactions were intended to be excluded from the operation of section 23. 30. I was satisfied that the enrolment contract was a contract for the supply of services within the meaning of section 23(3) to the parents for the use of their children. The enrolment contract was a consumer contract because it satisfied all relevant criteria set out in section 23(3).
The Respondent contended that this decision can be distinguished as it was based upon consumer law and contract. In our view this distinction is not entirely satisfactory. It would have the result that the provision of education services to a child enrolled in a non-government school, in respect of which contract law is applicable, s 49M may apply but not in the case where the education service is provided by a public authority. We think it is unlikely that this would have been the intended result.
The Respondent was unable to provide any authorities in favour of its construction.
In our view, the language of s 49M and the definition of services, including that it need not be for the payment of a fee, is wide enough to encompass the provision of education services to a parent in respect of the education of the parents' child by the Respondent, at least where the child is a minor.
Further, and in the particular circumstances of this case, it seems to be the more natural result to conclude, in the case where the parent is immune-compromised and wishes to have the child supported with flexible home learning options that the services are being provided both to the child and to the parent. In this case the parent is receiving a particular benefit from having the child educated at home.
Accordingly, we uphold ground 4.

[19]

Appellant's submissions

By this ground the Appellant focusses upon the findings and reasoning of the Tribunal at [43] - [45] as follows: 43 Similarly in this case, the respondent has done what is required of them and made schooling available for the child. The applicant always had the option of seeking to register her child for home-schooling. There is no requirement under the Education Act to provide home assistance so that a child may study from home. 44 The Education Act does not extend so far as to require the respondent to provide services to a parent. 45 Moreover, we find no discrimination based on s 49M against the child as the school was at all times willing to provide education either face to face or the applicant could have applied for home-schooling.
We note that in these three paragraphs, the Tribunal found no claim of discrimination based on s 49M of the AD Act. The reference in [43] to 'similarly in this case' is a reference back to IW v City of Perth at [42] which we have referred to previously.
The Appellant contends that the reasoning of the Tribunal is fundamentally flawed and demonstrates either a failure to appreciate the case as put by the Appellant or a failure to correctly apply the AD Act or both.
As summarised by us above, the fundamental contention of the Appellant was that the Respondent had the ability, at the discretion of the relevant officer of the Respondent, to provide flexible home learning services to the Appellant's son and did exercise such discretion to parents of children whose health made them particularly vulnerable. The Respondent did not challenge the basic premise that flexible home learning service could have been provided to the Appellant's son.
In such circumstances the Appellant submits that the following statements of the Tribunal were totally irrelevant: 1. That 'the Respondent has done what was required of them and made schooling available to the child' at [43]; 2. The 'applicant always had the option of seeking to register the child for home schooling' at [43]; 3. 'There is no requirement under the Education Act to provide home assistance so that the child may study from home': at [43]; 4. 'The Education Act does not extend so far as to require the Respondent to provide services to a parent': at [44]; and 5. 'The school was at all times willing to provide education either face to face or the applicant could have applied for at home schooling'.

[22]

The Tribunal's reasons

The Appellant's submission focuses upon the Tribunal's treatment of the medical certificates provided by the Appellant.
The Tribunal referred to the relevant medical certificate at [23] as follows: 23 The applicant provided a subsequent letter from Dr Jane Overland, dated 23 July 2020 which stated: I am writing to support [the child's] parents' request to supervise their son's education at home... [the child's] mother is immune-compromised, and she is self-isolating to reduce her risk of infection...
The Tribunal dealt with this medical certificate at [26] - [30] as follows: 26 Parents are exempted by the Education Act from the compulsory attendance of a student set out in 23(1)(a) if they comply with subsection 23 (7) of the Education Act which provides: Notice of a medical condition that prevents a child from attending school is required to be accompanied by a certificate from a medical practitioner that states that the child should not attend school because of the condition briefly described in the certificate if the principal of the school has notified a parent of the child that because of the number or duration of past absences a notice must in future be accompanied by such a certificate. 27 Neither of the medical certificates provided state that the child should not attend school. The letter of Dr Overland does not say that the child cannot attend school, only that Dr Overland supports the request of the parents to supervise their son's education at home because the child's mother is immune compromised. The certificate does not even go so far as to say that the child should not attend school because of the mothers condition, but rather that Dr Overland supports the request for the parents to supervise the schools education at home. 28 For those reasons it cannot be said that any medical certificate that was provided by the applicant was a notice of a medical condition as is required by s 23 (7) of the Education Act. 29 Section 24 of the Education Act requires the principal of a government school to keep a register of attendance and when required to do so must furnish information regarding attendance. Failure to do can result in a penalty. Similarly, s 23 makes it an offence for a parent to fail to send a child to school. 30 On that basis the requests of the Principal for the medical certificate and the finding that the medical certificate was not valid was consistent with the schools obligations under the Education Act.

[25]

Consideration

We agree with the Appellant's submission that the consideration of the Tribunal that the medical certificates did not state that the child could not attend school was an irrelevant consideration under s 23(7) of the Education Act. We agree that this amounts to an error of law.
Further, the question of whether or not the certificates complied with s 23(7) of the Education Act is a question of law. It is a matter of statutory construction whether undisputed facts, being the medical certificates, complies with s 23(7) and will amount to a question of law. The answer to that question in our view, however, is not determinative of the claim of unlawful discrimination.
The legal ability of the Respondent to provide flexible home learning services is not dependent upon a finding that the medical certificate complied with s 23(7) of the Education Act. It is clear that the Respondent at the relevant time did provide flexible home learning services to students and one of the legal bases for doing so was pursuant to s 25(1) and s 119 of the Education Act.
There was tendered before the Tribunal below the Respondent's document entitled 'School Attendance Policy'. Pursuant to clause 4.2.9 of this document principals have the authority to:

grant sick leave to students whose absences are satisfactorily explained as being due to illness
accept other explanations for absence and record the absence as 'L'
decline to accept an explanation for absence and record the absence as unjustified
grant an exemption from school attendance for periods totalling up to 100 days in a 12-month period for any one student provided certain conditions are met (see the Exemption from School-Policies)
grant part-day exemptions from school for periods totalling up to 100 days in a 12-month period (see the Exemption from School-Procedures)
grant exemption from enrolment for students who have completed Year 9 and have the required approval to complete their education in special circumstances through an apprenticeship or traineeship (see the Exemption from School - Procedures)

In this regard we note that certain 'guidelines' were tendered by the Respondent which explain how the discretion and delegated authorities of the officers of the Respondent would operate in regard to exempting children from attending school during the Covid-19 epidemic. As we understand it, the central contention of the Respondent before the Tribunal and before the Appeal Panel was not so much that the medical certificates did not comply with s 23(7) (which the Respondent contended it did not) but that the Respondent, by the school principal Ms Parker, applied the guidelines in a bone fide way to deny flexible home learning services to the Appellant and her son and accordingly no unlawful discrimination arises.
In our view, the Tribunal in its treatment of the medical certificates and its dismissal of the claim of unlawful discrimination on the basis that the medical certificates did not comply with s 23(7), for all of the reasons we have expressed above, failed to deal with the central aspects of both the Appellant's case before the Tribunal and the Respondent's defence to it.
In our view, it is not necessary to determine whether or not the medical certificates complied with s 23 of the Education Act to exempt the Appellant's son's attendance at school and accordingly it is not necessary for us to determine ground 1.

[27]

Summary of the evidence

On 18 March 2020, the Appellant advised Ms Parker, the principal of the Primary School, that due to her Diabetes Mellitus Type 1 giving her a chronic condition with poor outcomes to infection the family were self-isolating including her son who would not attend class 1D until the worst of the Covid-19 outbreak was 'weathered'. The Appellant advised that the situation would be monitored on a weekly basis.
On 18 March 2020, Ms Parker responded that it was 'understandable that' the family 'would seek to self-isolate … given the circumstances'. Ms Parker also advised that she would ask the Appellant's son's teacher to 'send home some work for him'. This essentially amounts to 'flexible' learning or flexible home learning services.
On 19 May 2020, the Respondent issued guidelines which relevantly provided: All students should be at school unless:

They have a medical certificate which states that they are unable to return to school due to an ongoing medical condition.
They are currently unwell. Students who have a medical certificate to stay at home will be supported to learn from home in line with regular procedures if they are unable to. These regular procedures are different to what offered during the learning from home period. If you require work to be provided to your child whilst they are at home due to underlying health conditions, you should contact the school for assistance. Please note, students who live with a family member in one of the categories identified as being at risk by the AHHPPC, should attend school, unless a medical practitioner advises otherwise in writing. (our emphasis)

According to the statement of Ms Parker, the Respondent also issued a guideline on 19 May 2020 in similar terms to the guideline quoted above, but which contained this paragraph: Please note, students who are residing with a family member in one of the categories identified as being at increased risk, should attend school unless a medical practitioner advises otherwise. The parent or carer should provide written confirmation from the treating health professional that the student is unable to attend school. (our emphasis)
A number of confusing aspects arise from these two guidelines which are not entirely consistent. The first guideline simply notes in the case of a family member who had an increased risk that a medical certificate should advise 'otherwise'. The second guideline requires medical written confirmation that the student is 'unable to attend school'. The evidence does not reveal which guideline should take precedence.
In the context of the guidelines as a whole and s 23(7) of the Education Act, the requirement that the child be 'unable' to attend school, in our view, cannot be taken literally. The context suggests the guideline is calling for a medical certificate which recommends that the child not attend school to avoid the family member contracting an illness or disease from the child.
On 20 May 2020, the Appellant advised the school that her son would return to school one day a week, starting Wednesday 27 April. On the same day, the school responded that 'all you need to do is to obtain a medical certificate from your doctor stating that you are unable to return [the Appellant's son] to full time face-to-face sessions due to the chronic conditions within your household' and to 'have the doctor cover the rest of the term dates e.g.: Monday 25 May 2020 to Friday 3 July 2020'.
On 29 May 2020, the Appellant advised the school as transmissions were 'reassuringly low' her son will return to school on Monday 1 July. Then, by certificate dated 23 July 2020, Dr Overland advised as follows: I am writing to support [the Appellant's son's] parents' request to supervise their son's education at home while NSW continues to record community acquired cases of Covid-19. [The Appellant] is immune-compromised, and she is self-isolating to reduce her risk of infection.
On 24 July 2020, in response to receipt of the medical certificate from Dr Overland, Ms Parker sent an email to the Appellant. She referred to the latest updated guidelines for attending school and where they could be found on the internet. She stated that she had copied for the Appellant 'the relevant sections'.
What was quoted was the following: School attendance: Remember not to send students to school if they are unwell, even if they have mild symptoms. Schools will make appropriate arrangements to return students home if they come to school unwell or become unwell at school. Students should be at school unless:

They have a medical certificate which states that they are unable to return to school due to an ongoing medical condition and the expected timeframe.
They are currently unwell.

What is not referred to by Ms Parker is the section of the guidelines, quoted above, which deals with the situation of a doctor 'otherwise advising' where the child resides with a family member at increased risk. On the face of things, this is an extraordinary omission given that this was clearly the relevant part of the guidelines relating to the Appellant and her son.
Ms Parker goes on to state that she will be contacting Dr Overland to let her know where to find the guidelines. Ms Parker concludes by stating, 'as [the Appellant's son] is well and does not have an immune-compromised condition, it is expected that he will attend school. He will not be provided with work to do at home at this time'.
It is also of some significance that Ms Parker did not take up any specific difficulties she may have had with the medical certificate other than pointing out that it did not refer to any medical condition of the Appellant's son.
In the Appellant's oral evidence, she could not recall whether she obtained and read either of the guidelines of 19 May. Understandably, she gave evidence that she understood Ms Parker to be indicating that flexible home learning services would not be available, nor would her son be exempted from attending school because the medical certificate failed to state her son was unable to attend school due to a medical condition pertaining to her son. Accordingly, the Appellant did not believe she could produce a medical certificate that could comply with this requirement.
Ms Parker had a telephone conversation with Dr Overland on 24 July 2020 which the Tribunal dealt with at [25]: 25 In her affidavit, Ms Parker recalls her conversation with Dr Overland as follows: Me: Thank you for your letter, I wondered whether you are familiar with the guidelines for students attending school in NSW at the moment? Dr: No, [the applicant] phoned me and then visited me and told me that [the child] needed a letter to attend school from home. I told her that I couldn't write [the child] a letter because he wasn't my patient. [the applicant] then asked me to write a letter saying that it was in [the applicant's] best interest that [the child] stay home. Me: I know that [the applicant] is anxious about COVID but the guidelines are that every child must attend school unless the child is Aboriginal or Torres Strait Islander, the child lives with someone who is seriously immune compromised for example a parent going through cancer treatment (our emphasis) or the child is immune compromised themselves. Dr: Yes, she is very anxious but that doesn't sound like it falls into guidelines, I would never have written the letter had I know it was against the Department of Education's guidelines. Me: Would you like me to send a copy of the guidelines? Dr: Yes.
The words 'the child is Aboriginal or Torres Strait Islander, the child lives with someone who is seriously immune-compromised for example a parent going through cancer treatment' is not in the guidelines. Ms Parker did state that throughout 2020 and 2021, she was informed by the Director of the Department of Education that students who qualified for 'flexible learning' were students who were: 1. Self-isolating; 2. Indigenous or Torres Strait Islander; or 3. Residing with someone at increased risk for example going through cancer treatment or palliative care and provided a medical certificate stating that the student could not attend school.

[28]

Consideration and findings

The Appellant has Type 1 Diabetes with cardiac and renal complications and is immune-compromised. She is also vulnerable and at increased risk of severe illness and possible death, if she were to contract Covid-19. The evidence was that as of 30 July 2020, people with diabetes represented 25% of all deaths due to Covid-19.
Based on the evidence we find that the Appellant is in one of the categories identified as being at risk by the AHHPPC and is at 'increased risk' within the meaning of the guidelines of 19 May 2020. We note that the Respondent made no submissions to the contrary. We also find that the medical certificates of Doctors Overland and Hassim amount to advice 'otherwise in writing' within the meaning of both guidelines.
A key submission of the Respondent was that the case of the child at the Appellant's son's school who received flexible learning due to the child's parent undergoing chemotherapy was not a relevant comparator. The Respondent submitted that this was the case because the medical certificate stated that the child could not attend school. On the evidence, we are unable to find that the express statement that 'the child could not attend school' or 'should not attend school' were contained in the relevant medical certificate.
The other contention of the Respondent was that the medical certificates relied upon by the Appellant were inadequate because they failed to provide for a start and end date. In our view, this is not of significance because the relevant guidelines at the time did not make this a requirement.
Also, for the reasons we explain below, we find that the mere absence of a start or end date would not have been a determining factor in the Respondent's consideration of the medical certificates produced at the time.
A key issue in the case is whether the Respondent, including in particular Ms Parker, would have treated the Appellant differently had the medical certificates advised that the Appellant was undergoing chemotherapy as opposed to having the disability referred to by us above. We note that rarely in a case of unlawful discrimination will the real 'grounds' for a Respondent's actions be revealed by the party's own witnesses. The issue will more usually be a question of inference to be drawn from all of the evidence.
Ms Parker's evidence in the case of a parent undergoing chemotherapy was as follows: Mr Vogel So, the only requirement for this child to be granted home learning was that the parent produce a letter from the medical specialist asking for home learning? There was no further requirement. Ms Parker Correct
On the face of this answer, Ms Parker accepted that in the case of a parent undergoing chemotherapy, all that was needed was a medical opinion 'asking for home learning'. The medical certificates produced by the Appellant come within this description. In the case of the Appellant's application to keep her son home, Ms Parker applied different criteria, which she justified as follows: Mr Vogel Can you tell the tribunal on what basis this letter was inadequate? Ms Parker This letter was about [the mother of the Appellant's son] and her need to self-isolate, and it was a request to supervise [the Appellant's son's] education at home. It does not have any further detail in around any impact that [the Appellant's son] attending school would have on his mother's health condition. There is no start date or end date or review date. . . . So, from time to time, year in, year out, whether we are in a pandemic or not, parents in schools undergo chemotherapy treatments. At the time they are undergoing the treatment, they have no immune system operating. And so, schools, principals, are asked to grant leave to a student while their parent undergoes that treatment, in order not to compromise the parents having no immune system. In [the Appellant's] case, if the letter from her specialist had've been clearer, if it was about the impact of [the Appellant's son] attending school and the impact on her own health, bearing in mind there were no cases in our community and at all through 2020, and there were no cases in the school either. So, at that point, without more information from her specialist, I would not be granting the leave. I took advise from the Director of Educational Leadership at that time, as well as the Learning and Engagement Team of the New South Wales Department of Education.
We note that Ms Parker, in her evidence, did not focus on the absence of the statement in the medical certificate that the child 'should not' or 'is unable' to attend school. Her concern was simply over a perceived lack of clarity as to whether the doctors were stating that the Appellant's son attending school posed a risk to the Appellant's health. We find the medical certificates did point out that it is the impact on the mother's health from the son attending school that was the reason for supporting home learning or schooling.
We find that Ms Parker state of mind was that whilst she was willing to readily approve the application for the parent undergoing chemotherapy "in order not to compromise the parents having no immune system operating" she doubted that the Appellant' s condition could be equally worthy "bearing in mind there were no cases in our community and at all through 2020".
On the evidence as a whole we find that had the Appellant produced a medical certificate substantially in the same form as that of Doctors Overland and Hassim but referring to the Appellant undergoing chemotherapy rather than her actual health condition, then Ms Parker would have approved her son for flexible home learning services and exempted her son from attendance at school and marked the record accordingly.
We further find on the evidence that the different health conditions are not materially different in respect of their worthiness with respect to an application for flexible home learning services and exemption from attendance at school. We note that the Respondent made no submissions to the contrary nor was there any medical evidence to support such a proposition.
Accordingly we find that the Respondent discriminated against the Appellant's son on the ground of the disability of the Appellant, being an associate of the Appellant's son, as the Respondent treated the Appellant's son less favourably than in circumstances which are not materially different to how the Respondent would treat a person, being a parent undergoing chemotherapy, who does not have the disability of the Appellant within the meaning of s 49B(1)(b) of the AD Act.
We find that the Respondent contravened s 49L(2)(a) of the AD Act and engaged in unlawful discrimination by denying the Appellant's son access to flexible home learning services being a benefit provided by the Respondent as an educational authority.
We find that the Respondent contravened s 49L(2)(c) by unlawfully discriminating against the Appellant's son by subjecting him to the detriment of being required to attend school in circumstances where such attendance may pose a risk to the health of the Appellant. We note in this regard that the term 'any other detriment' in s 49L(2)(c) is to be given a broad not constrained meaning: Khoury v Government Insurance Office of NSW (1984) 165 CLR 622 at 638.
We find that the Respondent contravened s 49M by unlawfully discriminating against the Appellant on the ground of her disability by refusing to provide the Appellant with the services of educating her son by the provision of flexible home learning services.
Pursuant to s 108(1)(b) of the AD Act we find the complaint substantiated in whole.

[29]

Orders of the Appeal Panel

Pursuant to s 45A(a) of the NCAT Act, we appoint the Appellant to act as guardian ad litem for her son.
We note the Appellant sought an order that the Appellant be 'joined as second applicant'. In our view such an order is not necessary, though we note that following the amendment of the complaint made by the Tribunal below, the Appellant appears in her own capacity and also as guardian ad litem for her son's claim.
The Appellant sought orders under s 108(2)(b) and s 108(3) in the nature of injunctive relief against the Respondent. We decline to grant such orders as the contraventions in question cover a finite period of time and the evidence before us is that the Appellant and her son are being dealt with in a manner not currently causing complaint.
The Appellant also sought an order under s 108(2)(c) of the AD Act that the Respondent prepare a plan, setting out the procedure to be followed should there arise in the future the need to keep the Appellant's children at home from school. We decline to grant such an order for similar reasons.
Nextly, the Appellant sought an order pursuant to s 108(2)(c) for the Respondent to amend the Appellant's son's attendance record to show absences either as 'leave' or 'flexible'. We decline to grant such an order as the current records already show the Appellant's son's attendance marked as 'absent' and 'whole justified' which as Ms Parker explains, means that the explanation provided was accepted and regarded as justified.
The Appellant sought pursuant to s 108(2)(d) of the AD Act a written apology from the Respondent. This order was sought in light of the 'hurt, distress and inconvenience caused by' the Respondent. In our view, the more appropriate way to redress such consideration is by the award of compensation. Accordingly, we decline to order a written apology.
The Appellant sought compensation pursuant to s 108(2)(a) of the AD Act. The Appellant sought $3,750 for loss income, $22,000 for legal costs incurred, and $25,000 non-pecuniary loss including for hurt, distress and inconvenience.
The claim for lost income was on the basis of 2 hours lost income for 25 days while the Appellant's son was studying at home and being educated by the Appellant. The Appellant's evidence was that she was working as a consultant in her husband's business at $75 per hour. She gave evidence that much of her available free time was spent attending to the education of her son so that she was unable to do work in her husband's business.
In the absence of any corroborative evidence or documentation as to the business being operated by the Appellant's husband or the finances and workings of that business and other evidence in support of the claim, we are not satisfied that a case for lost income can be made out. In particular, we note that the claim is only for 25 days. We are not satisfied that any alleged lost income for two hours per day for such period could not have been made up in the other days that followed this period of time.
In respect of the claim for legal costs, we note that the only jurisdiction the Tribunal has to order costs is pursuant to s 60 of the NCAT Act. This requires the demonstration of 'special circumstances warranting an award of costs'. The Appellant made no submissions in support of the existence of special circumstances, and we are not satisfied that any exist in the case here.
Accordingly, we decline to make an award of compensation for legal costs incurred.
In respect of the claim for compensation for non-pecuniary loss for hurt, distress, inconvenience and humiliation there was fairly extensive evidence from the Appellant, not challenged in cross-examination, which we accept. This would include the inconvenience of any extra time required from the Appellant in attending to the education of her son at home.
We note the Tribunal discussed the principles applicable to an order for compensation for hurt and humiliation in Donato v The State of New South Wales (Department of Education) [2022] NSWCATAD 36. There, the Tribunal at [103] - [104] approved the following principles in respect of quantification of compensation for non-pecuniary loss in cases of unlawful discrimination.
First, consideration must be given to 'community standards [which] now accord a higher value to compensation for pain and suffering and loss of enjoyment of life than before'. Second, in respect of compensation for hurt feelings and distress the courts have repeatedly asserted that awards for such loss 'should not be minimal, because this would then trivialising or diminishing respect for the public policy.' Third, regard must be had to the statutory cap in the Tribunal's jurisdiction as giving a benchmark of the most serious case.
In our view, taking into account these principles, and the evidence before us, we find that at an appropriate award of damages by way of compensation for non-pecuniary loss or damage suffered by reason of the Respondent's conduct is $15,000.

FVN v Secretary, Department of Education

At a glance

Court

Decision date

Source

Judgment (31 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (23)