GKX v Secretary, Department of Education

The President's Report

1. On 12 October 2022, ADB received a complaint from the applicant alleging disability discrimination in education as to the respondent's conduct in regard to her child.
2. In the complaint form, the applicant did not state whether the events happened more than 12 months prior to making the complaint. In the complaint form the applicant stated that in term 1 2021 "various accommodations" that were provided in 2020 were not provided and she had to "advocate for them to be re-introduced" and that the Student was "self-conscious" about using them because she was told that she did not need them, or that other students needed them. The accommodations were described as "basic sensory tools (a weighted lap pad) and "sensory space in the classroom." The applicant also complained that the School refused to meet with the Student's Occupational Therapist to discuss the "supports."
3. It is also alleged that the Student was "blamed for distress stemming from the lack of accommodations," demonstrated by Sentral records recording the Student being "insolent" and "stimming (shaking hands rapidly)." A particular incident on 12 October 2021 with the School Principal was alleged to involve harassment and a threated school expulsion.
4. The applicant alleged that the incident had a significant impact on the Student. She was "extremely mentally unwell and volatile." She refused to return to school for significant period of time. Following this incident, the applicant was told that the Student could not attend the School as she needed one on one support. The applicant stated that she felt like she had no choice but to ask for an application to distance education. The dual enrolment at the School and at the distance education was only able to last for a 12 month period.
5. The complaint period was identified to be 12 October 2021 to 12 October 2022 ("the Complaint Period"). The type of the complaint is discrimination in education. No exceptions were relied on by the respondent.

Applicant's affidavit

1. The chronological order of events is set out in the applicant's affidavit. Because of the nature of the application much of the evidence must be set out in detail.
2. The Student began at the School in Term 3 in 2020. Prior to the Student being enrolled in the School, the applicant spoke to the Principal of the School and said to her that the noise of the playground was a major barrier attending school and that the Student would not cope if she had to go on the playground during break times. The Principal assured her that a quiet space would be provided.
3. In paragraph 2 of the affidavit it is stated: In early 2020, the Student was identified as having significant sensory challenges by Rachel Hanson, Occupational Therapist at Randwick Children's Hospital. Later in 2023, the Student was diagnosed also with auditory processing disorder. On 12 October 2020, the Student was diagnosed with ADHD. On 10 May 2021 she was diagnosed with autism (PDA profile). The School was notified of the ADHD diagnosis on 11 October 2020 (before I had a formal diagnosis letter). The School was notified of the autism diagnosis on 8 July 2021. I provided full diagnostic reports and recommendations to the School when I notified them of the diagnosis.
4. Annexed to the affidavit is a report by Dr Sealy dated 19 October 2020. The issues identified were relevantly, complex psychosocial background, oppositional and defiant behaviours, autism spectrum disorder ("ASD"), and attention deficit hyperactivity disorder ("ADHD").
5. In the summary of the report it is stated that: The Student is an intelligent and kind 6 year old boy. He has a complex psychosocial history with exposure to trauma. He meets the DSM 5 diagnostic criteria for attention deficit hyperactivity disorder (ADHD). Hyperactive, impulsive type with features of inattention. He has features of autism spectrum disorder (ASD) but at present does not meet the DSM 5 diagnostic criteria. He also has opposition and defiant behaviour which is very challenging to manage at school and at home.
6. Dr Sealy recommended that psychological intervention was a priority, with a focus on behavioural management strategies and emotional regulation. Dr Paul Hatton with the Developmental Paediatric Outpatient Clinic would work with the Student as well as his mother and his school. There was a recommendation that that his school apply for access request funding to support him.
7. Also annexed to the affidavit is a two page document which may be part of a report. The author stated that the Student presented with social communication and restricted repetitive behaviours consistent with ASD. He presented with Level 2 support needs for social communication and restricted repetitive behaviours.
8. Based on a broad range of criteria and a DSM-5 review, the following behaviours were set out in terms of restricted and repetitive behaviours and social communications. 1. Struggles with reciprocity in social interactions with adults and peers. 2. Initiation of and responsiveness in interactions and conversations is variable. 3. Communication is not always directed and he tends to predominantly communicate verbally. 4. Does not always appear to read or respond to others facial expressions or social cues. 5. Shows ongoing difficulties with developing, maintaining and sustaining relationships. 6. Shows ongoing difficulties. 7. Struggles to engage in cooperative and imaginative play with adults and children. 8. His speech can lack variation in pitch and tone. He will grunt and hiss rather than using his words. 9. Has a history of engaging in some repetitive play. 10. His thinking and behaviour are concrete and rigid. He demonstrates a notable lack of flexibility in social interaction. 11. His diet is restricted on his particular about the presentation of foods. 12. He has strong and circumscribed interest in science, chemistry, mats, and the human body.
9. ADHD - combined type diagnosis was also found to be presenting oppositional and challenging behaviours.
10. The School did apply for student support funding on 12 June 2020. The application form is in evidence. The two key focus areas were safety and social competence. The Student's need was described as struggling with changes to routines and transitions, aggressive behaviour towards adults and students, emotional outbursts including yelling, lashing out and non compliance even when it places someone at risk.
11. Some of the planned adjustments were identified as provision of quite space for breaks, being accompanied by a school learning support officer ("SLSO") during all transitions and breaks with a behaviour book to monitor his behaviour, who could provide explanation of appropriate behaviour. That the teacher would use behaviour monitoring chart to monitor his interactions with others, as well as use of awards chart and visual prompts to help him understand the situation.
12. Despite the agreement to provide the Student a quite space during school breaks, shortly after, the Student commenced at the School, the Principal told the applicant that the quiet space would be in the school library but was only available to different year groups on different days and that the Student was required to go onto the playground at lunch times.
13. In paragraph 16 of the affidavit it is stated that: By term 4 in 2020 the difficulty is experienced by the Student had become obvious to staff as the Student has several times become highly dysregulated on the playground, had absconded and regularly refused to go onto the playground.
14. Based on the recommendations of the Student's paediatrician Dr Hatton, his counsellor Sandra Miller, and his Occupational Therapist Rachel Hanson, the School agreed to the following adjustments in term 4 2020: 1. A quiet area available in the office at break times. 2. The use of regulation tools in the classroom, including a weighted lap pad ("Patrick"). 3. A chill out area in the classroom that the Student could access on demand. 4. Adjusted curriculum to cater to the Student's giftedness and interests.
15. At the end of 2020, the applicant met with the Student's year 1 and 2 teacher and the Student's counsellor, Ms Miller and was told that the adjustments set out above would "transition seamlessly to year 2" in 2021.
16. The applicant's evidence is that at the commencement of 2021 school year the adjustments were not provided, so commenced a year of disagreements between members of the School and the applicant about supports she believed the Student needed to participate in the School.
17. On 12 October 2021 the applicant received a phone call from the Principal of the School. During the telephone call the Student was present with the Principal at the School and another teacher.
18. The Principal told the applicant that: 1. She would need to consider suspending the Student for her behaviour as she had refused to give an iPad back to the teacher; 2. Staff had tried everything and had given up on the Student; 3. That there are plenty of autistic students at school and they know how to behave while the Student does not; 4. That the problem with the Student is that she does not have empathy; 5. That she should tell the Student to behave; 6. That there would be problems finding a teacher for the Student in year 3; 7. That she could not permit her destroying a class, as any class she is put in she would destroy; 8. That the Student needs to have one on one full time support; and 9. That the Student would need to behave to be accelerated.
19. In November 2021 the applicant had a conversation with Mr Gardner, a school teacher and he stated that the Student should attend a behavioural school because the Student requires one on one care and he cannot attend the School or any mainstream school. The applicant stated that she was aware of a student with a different disability who had one on one care and was in a mainstream school.
20. In February 2022 the Student was attending the School for one hour as part of a reintegrated plan and was informed that funds for the Student had been moved to Sydney District Ed and as such the Student could no longer attend the School.
21. In 2023, the applicant found out that the Student was no longer enrolled at the School.
22. Under the heading "Outcomes Sought" the applicant listed: 1. That the enrolment at the School or another school be continued; 2. Curriculum adjustments; 3. Compensation; 4. Changes to the procedure used by the School to record behavioural incidents on Sentral and improvements to communication; 5. Amendment of the Sentral records; 6. Discipline of the Principal of the School; and 7. Apology from the Principal of the School and other named individuals.

The Amended Points of Claim

1. The complaints set out in the Amended Points of Claim (APC) are: 1. Removal of regulation tools: 1. a weighted lap pad; 2. access to a quiet space at break times; 3. access to a safe chill out space to be accessed on demand in the classroom; 4. adjusted curriculum to cater for the student's giftedness and interests; 5. access to voice to text; and 6. a scribe instead of being expected to hand write.
2. It is alleged that the School removed these standard reasonable adjustments listed above in 2021 and that other students with medical or health needs or other disabilities had these adjustments provided to them by the School.
3. It is also alleged that these standard reasonable adjustments were agreed to by the School in the Individual Education Plans and Personalised Learning Support Plans IEP/PLSP in Semester 4 2020.
4. It is alleged that as a result of the failure to provide the adjustments the Student was unable to attend the School on a full time basis and experienced a serious mental decline. This is stated to be a contravention of ss 49L(1)(b) and 49L(2)(a) of the Act.
5. It was also alleged that: 1. The School refused to allow the Student on school grounds in early 2020 during agreed reintegration sessions on the basis that it was no longer receiving funding contrary to s 49B(1)(a) of the Act 2. The School refused to provide a teacher to meet online with the Student to maintain connection to the School contrary to s 49B(1)(a) of the Act; 3. The School refused to provide adequate reporting and assessment of the Student to the applicant contrary to s 49B(1)(a) of the Act; 4. The conduct of the Principal of the School on 12 October 2021 (as set out in paragraph s [38]-[49] of the applicant's affidavit) contrary to s 49B(1)(a) of the Act; 5. The conduct of the Principal of the School on 28 February 2022 (as set out in the applicant's affidavit at paragraphs [69] to [71]) contrary to s 49B(1)(a) of the Act; and 6. Expelling the Student.
6. The APC identified detriment within the meaning of s 49L(2)(c) by recording the Student's distress as "insolence" and "defiance" in the Sentral record, reputational damage in the school community, the Principal's unprofessional harassment and vilification of the Student and the applicant on 12 October 2021 and on 28 February 2022.
7. The applicant also sought leave to amend the complaint to include an allegation against herself personally pursuant to s 49M and an anonymisation order.

The respondent's submissions on summary dismissal

1. The respondent submitted that it set out its concerns about the APC in the letter to the applicant and the Points of Defence. At the hearing it relied on written and oral submissions. The respondent complained about the following matters: 1. the applicant must not just set out the diagnosis of the disability but also explain the "nature and extent of the disability suffered;" 2. the comparator for each and every allegation must be pleaded; 3. the actual allegations complained of must be pleaded; 4. whether the allegations are direct discrimination or indirect discrimination or made in the alternative are not clear; and 5. where there is a pleading of indirect discrimination, what the requirement or condition is and why it is was not reasonable, compliance with the condition or requirement.
2. The respondent submitted that the applicant's claims were misconceived. Even if the adjustments were provided to the Student because of her disability but later removed by the School because of the Student's disability, it cannot amount to a claim of discrimination because the Act does not require the School to provide reasonable adjustments as there is no requirement for more favourable treatment on the respondent like there is in ss 5 and 6 of the Disability Discrimination Act 1992 (Cth).

The law

1. Section 49B defines discrimination as: 49(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.
2. Section 49L applies to 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. (3) Nothing in this section applies to or in respect of-- (a) a private educational authority, or (b) a refusal or failure to accept a person's application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students who have a disability which is not the same as that of the applicant. (4) Nothing in subsection (1) (a) or (2) (b) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority. (5) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the educational authority.

Principles as to summary dismissal

1. Section s55(1)(b) of the CAT Act allows for a proceeding to be dismissed in whole or in part at any stage if the Tribunal is satisfied that the proceedings are misconceived or lacking in substance, or if the Tribunal considers that the proceedings are vexatious or frivolous.
2. The principles as to the Tribunal's power to dismiss proceedings under s55(1)(b) of the CAT Act and the similar provisions in s 102 of the Act are well known. A complaint or part of a complaint can be dismissed if it is 'so clearly untenable that it cannot possibly succeed.' General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130.
3. In a dismissal application, the applicant's case in the substantive proceedings is taken at its highest to enable the Tribunal to determine whether the evidence is capable of amounting to a contravention of the Act. Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]. The onus of proving that a complaint ought to be summarily dismissed lies on the person seeking such an order. Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179 at [53].
4. In Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 at [11] the Appeal Panel considered the predecessor to s102 of the Act and stated that: Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the plaintiff has no direct evidence. (Wickstead v Browne (1992) 30 NSWLR 1). The commonly-stated test of taking the evidence at its highest' needs to be understood in this context. The evidence that is available to a Tribunal when assessing whether to dismiss a complaint before the completion of an inquiry is not all that a Tribunal must take into account. That evidence, even taken at its highest' may not be enough to withstand an application for dismissal. But the nature of proof of discrimination complaints in many circumstances is such that it will often be appropriate to have regard as well to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent's witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred.
5. A complaint is misconceived or lacking in substance if it can be demonstrated that there exists no factual or legal basis for the allegations or that the allegations lack merit. Battenberg v The Union Club [ No 2] [2003] NSWADT 187 at [15].
6. In Razaghi v Director-General, NSW Department of Health [2002] NSWADT 4 at [24], the Tribunal commented on the need to balance an unrepresented person's right to present their claim with the right of the respondent to have reasonable notice of the nature of that claim: 24 As with civil litigation generally, the "pleadings" often fall well short of the ideal. This results, as has happened in this case, in the respondents not being properly informed of the claims against them, and in the Tribunal not being apprised of the questions which it must resolve and the disputes which it must determine. The governing legislation, the Tribunal Act, makes it clear that the Tribunal should not permit form to prevail over substance (see s 73(3)). At the same time, the Tribunal Act stipulates that we should strive to ensure that the respondents understand the allegations against them, so that the respondents may choose whether to admit those allegations or defend them (see s 73(4)(a)). It sometimes becomes necessary to strike a balance between the overlapping objectives of informality, procedural fairness and efficiency. That balance can be particularly difficult to achieve in cases such as the present where the applicant is unrepresented, the allegations are both grave and voluminous, the stakes are high and the claims made against the respondents are expressed at a level of generality not usually associated with legal proceedings. Striking that balance and determining the extent to which the Tribunal can and should go to assist an unrepresented applicant to frame his/her case have been particularly difficult issues to resolve in this instance.
7. At [37]-[38], the Tribunal found that while the applicant had not properly pleaded its case, he should still be afforded the opportunity to present its case at a final hearing. 37 Much of the material in both Points of Claim is lacking in substance, in the sense that many allegations are expressed with such a degree of generality that they are essentially meaningless for the purpose of determining whether they comprise claims that either or both respondents have contravened any of the provisions in the Act. It is not appropriate to permit these allegations to proceed to hearing in this case, for the respondents would have no reasonable idea of the allegations against them and the Tribunal would be unaware of the issues which it has to determine. The applicant has already filed thousands of pages of documents with the Tribunal, without in any way indicating their relevance or the claims they support. If the applicant were given the opportunity to proceed directly to hearing, without refining his claims, it is highly likely that the time and expense associated with sifting through this material and determining its relevance would be extraordinary. 38 The authorities make it clear, however, that we should not deny the applicant the opportunity to present his case at a hearing if we can identify an arguable case from the material before us. It has been difficult to determine the extent to which the Tribunal should assist the applicant to identify an arguable case by presenting some of his allegations in such a way that they constitute allegations of contraventions of the Act which can be understood and answered by the respondents, as well as fairly tried by the Tribunal. It is of relevance that despite considerable endeavours on his behalf, the applicant is not legally represented. We are also mindful of the fact that the allegations made by the applicant are complex, grave and important, for they concern attempts on his behalf to practise his chosen profession, which he is qualified to do in another country.
8. In Tebb v NSW [2020] NSWCATAD 85 the Tribunal accepted that the Outline of Complaint was deficient and conflated facts, contentions and submissions and failed to particularise the material on which the applicant relied to satisfy each of the elements of the relevant statutory tests. However, this was not sufficient to warrant dismissal, at [56]: [56] … While undoubtedly this makes the respondent's task of responding to both complaints difficult, I am unable to agree with the proposition that it is not possible to discern from a fair reading of the President's report, together with the material filed by Mr Tebb, the basis of his claim. Nor am I persuaded that this shortcoming provides a proper basis for exercising the power to dismiss the complaints summarily.
9. The Tribunal stated at [58], that the applicant's failure to direct evidence to support the elements of causation in both complaints was unremarkable. At [59] it stated: [59] At this stage of the proceedings, not only is there no direct evidence that one of the reasons the respondent subjected Mr Tebb to the treatment about which he complains was because he had a disability or carers' responsibilities, but Mr Tebb has failed to articulate the basis upon which those inferences can reasonably be drawn from the available material. To establish causation it is not enough that Mr Tebb hold the honest belief that the treatment about which he complains was because he had a disability, carers' responsibility or had complained of discrimination. It follows that, assessed at this stage, the complaints lack substance. Nonetheless, for the following reasons, I have decided not to exercise the power to dismiss the complaints.
10. I also take into account the guiding principle in s 36(1) of the CAT Act that applies to the Tribunal's practice and procedure which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

Disability

1. I reject the respondent's submission that it does not know the nature and extent of the disability suffered by the Student.
2. The disability is identified as ADHD and autism. Detailed medical reports have been provided to the respondent setting out the nature and extent of the behaviours associated with these disabilities. Annexures 6 and 7 to the applicant's affidavit refers to the school putting in place strategies for the Student based on his disabilities; these being a quite space during break times with books and toys, creation of social stories to assist with transition, weighted toy, time out chair, adjusting writing tasks, using an iPad. The School also prepared a student support funding application setting out the nature and extent of the applicant's needs.

Complaints

1. Based on the material before the Tribunal and the applicant's submissions at the hearing on 31 May 2024, I consider that there are four complaints made by the applicant which may be arguable.
2. I consider that sufficient detail has been provided regarding the dates of the particular events and the allegation as to what occurred.
3. There is insufficient detail as to how these allegations are characterised within the meaning of ss 49B and 49L of the Act, whether the conduct is direct or indirect discrimination and the identification of each element of the alleged unlawful conduct.
4. The comparator relied on by the applicant was often referred to as another student with medical/health needs and or other disabilities. It is unclear though whether the applicant is referring to a hypothetical comparator and/or to another student. The applicant should make this clear prior to the respondent filing its evidence.
5. The applicant's reliance on s 49L(1) is misguided as at all times, the Student was attending the School, although I note there is an allegation that in late 2022 the School disenrolled the Student. Section 49L(2)(b) of the Act deals with the issue of expulsion.

First allegation

1. Throughout the Complaint Period, the School removed the adjustments it provided to the Student in 2020.These were: 1. a weighted lap pad; 2. access to a quiet space at break times; 3. access to a safe chill out space to be accessed on demand in the classroom; and 4. adjusted curriculum to cater for the Student's giftedness and interests.

Second allegation

1. Throughout the Complaint Period, the School reduced the level of SLSO support that had been in place since the Student commenced at the School.

Third Allegation

1. The conduct of the School Principal on 21 October 2021 which included threatening to suspend the Student and communicating in an aggressive and hostile manner in front of the Student and the applicant as set out in paragraphs [38]-[49] of the applicant's affidavit.

Fourth Allegation

1. The conduct of the School Principal on or about 28 February 2022. Ms Allen stated to the applicant that the School would no longer be able to "support" the Student and was no longer her "main school."

Direct and indirect discrimination

1. The applicant submitted that the first allegation was both direct and indirect discrimination and that the second, third and fourth allegations were direct discrimination.
2. The applicant's submission regarding Allegation 1 was that it was both direct discrimination in that the Student was treated less favourably compared to other students with a medical condition or different disabilities because of his disability. As well as that the Student had to comply with a requirement or condition with which a substantially higher proportion of students who do not have his disability were able to comply with, but he was not able to comply with. It was asserted that the requirement was unreasonable.
3. The requirement was said to be participation in the School with appropriate social behaviours. I understood this to mean that the requirement was that the Student fulfils the curriculum the same as students in his class without displaying aggressive behaviours towards adults and other students.
4. Allegations 2 to 4 were that that the School treated the Student less favourably than in the same or similar circumstances the School treats another Student with a different disability on the ground of the Student's disability.
5. The comparator was referred to as a student with autism who is receiving the required supports. There was also reference to a student with leukemia. There was also reference to a hypothetical comparator being a student with a different disability or medical condition. It is unclear in regard to all four allegations whether the comparator was a hypothetical comparator or a student at the School or another NSW public primary school.
6. The purpose of a comparator is to shed light on whether the treatment of the complainant was less favourable. This requires the identification of the comparator within the relevant circumstances; Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [222] - [225]: [222] It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the "circumstances" to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant's contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical - circumstances in which no aspect of the disability intrudes. That is not what the Act requires. [223] In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability. [224] The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different. [225] In the present case, the circumstances in which Daniel was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions: (i) How, in those circumstances, would the educational authority have treated a person without Daniel's disability? (ii) If Daniel's treatment was less favourable than the treatment that would be given to a person without the disability, was that because of Daniel's disability?
7. Without any disrespect to the applicant, it was clear from her oral submissions that she did not understand the meaning of indirect discrimination and what she must prove.
8. In Catholic Education Office v Clarke [2004] FCAFC 197; 138 FCR 121 ("Clarke"), Sackville and Stone JJ, in reliance on Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 257 ("Styles") explained the four elements of indirect discrimination in the context of an educational setting, albeit the claim involved an offer of enrolment by a school of a deaf student conditional on the acceptance of a model of learning that excluded the provision of a Auslan interpreting services.
9. The four elements involved in establishing indirect discrimination are: 1. The imposition of a requirement or condition; 2. Disparate impact of the requirement or condition, that is, a substantially higher proportion of persons who do not have that disability, comply or are able to comply with the requirements or condition; 3. The requirement or condition is not reasonable; and 4. Inability of the complainant to comply.
10. I consider that a characterisation consistent with the principles in Waters v Public Transport Commission [1991] HCA 49; (1992) 173 CLR 349 ("Waters"), at 393 -394, 406-407 is that the condition or requirement was that the supports or adjustments would not be provided to the Student.
11. This is the consistent with the characterisation given to the decision to withdraw conductors from trams in Waters and the characterisation given in Clarke in regard to the removal of an Auslan interpreter.
12. This characterisation clarifies the nature and extent of the education provided and considers the requirement from the perspective of the disabled person.
13. For the purpose of the strike out application, I am prepared to accept that such a characterisation may be a requirement or condition with which the Student could not comply with but that a substantially higher proportion of persons who do not have that disability, comply or are able to comply with the requirements or condition.
14. In terms of the "substantially higher proportion" the calculation is to be made between students at the School (or a different pool of students) and the persons who do not have the Student's disability. The question is whether those persons without the Student's disability comply or can comply with the requirement or condition.
15. The applicant would need to prove as a practical factual matter that the Student did not comply with the requirement. Waters 378-9.
16. The applicant does need to prove that the requirement or condition is not reasonable. Whether or not the requirement or condition is not reasonable must be considered in the circumstances on an objective basis; Waters at 371, 379. The test is less demanding than necessity but more demanding that convenience; Styles at 263. Factors may include, but are not limited to compliance with legislation, policy and procedure, funding, student plans and the availability of alternative methods to achieve a non-discriminatory regime.
17. The question posed by s 49L(2)(c) is whether the School insisted on compliance with the requirement or condition, even if it was not explicitly imposed. The reasonableness of the insistence on compliance with the requirement or condition also goes to the question of reasonableness Waters 378-379.
18. I reject the respondent's submission that the claim is misconceived because the School's decision to remove the adjustments even if provided for the Student because of the disability and later unilaterally removed for any reason including the Student's disability, as under the Act there is no requirement on the respondent to provide more favourable treatment to the Student.
19. The difficulty with this characterisation is that the applicant's evidence in this application is that the Student could not be educated at the School unless she had the access to the adjustments or supports. To approach the question in this way concentrates on what is given to students who do not need the adjustments and detracts from the language and purpose of the Act. Such an argument was made and rejected in Clarke at [10]-[11].
20. The submission also misses the critical point that the Tribunal would need to decide applicant's claim as to why the supports or adjustments were removed not why the supports or adjustments were initially provided to the Student, although this issue may be relevant in the factual matrix in which the case is considered and determined.

Disability discrimination in education s49L

1. The applicant claims that the Student was denied or limited a benefit provided by the respondent or subjected him to a detriment or was expelled. Below are some cases of disability discrimination in education. The decisions deal with a broad range of conduct alleged to be discrimination alleged to be a denial of a benefit and or subjecting the student to a detriment.
2. The term 'detriment' in s49L(2)(c) was considered in CEU v University of Technology Sydney [2017] NSWCATAD 323 at 8: The term "detriment" has a relatively broad meaning ... 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.
3. In DJH v Secretary, Department of Education; DJI v Secretary, Department of Education [2018] NSWCATAD 31 the following were considered to be less favourable treatment if proved on the facts at [37]-[40]: (i) Suspension, which also caused further educational and sporting disadvantage to DJI; (ii) Failure to prevent or act on teasing of DJI; (iii) Ignoring advice from professionals about DJI's needs; (iv) Taking no action when DJI was assaulted by another student in 2015 during sport; (v) Refusal to formulate a headache management plan for DJI in February 2016; (vi) Not giving DJI analgesia for headache; and (vii) The school issuing a restricted communications protocol to DJI's parents.
4. The Tribunal was also satisfied that there was an arguable case of indirect discrimination at [56]. The Tribunal understood the argument to be: [55] The Tribunal understands from this that the complainant's argument is that a greater proportion of students without DJI's disability are able to read social situations better than DJI does. The students without DJI's disability react to hurtful or frustrating situations differently and in a manner which complies with the school discipline policy.
5. In Shaw v Secretary, Department of Education [2021] NSWCATAD 95 the Tribunal amended the complaint to include a complaint that strategies set out in the plans made by the school were a benefit denied by the school within the meaning of s49L(2)(c) and that being subjected to a decline in learning outcomes was a detriment within the meaning of s49L(2)(a).
6. In FLM v State of New South Wales (Department of Education) [2022] NSWCATAD 36, it was found that the student could not comply with being required to participate in classroom learning without the support/assistance of a teacher's aide and/or Student Learning Officer as indirect discrimination as the student was subjected to detriment within the meaning of s49L(2)(a).
7. In Secretary, Department of Education v FSO (obo FSN) [2023] NSWCATAP 160 at [99(6)] the Appeal Panel stated that a benefit is something provided to the general student body but denied to the Applicant because of his disability. It does not seem to me that the applicant alleges that something any of the matters alleged were provided to the general student body was denied to the Student.
8. I consider that it is arguable that the Student was subjected to detriment in regard to all four of the Allegations.
9. Allegation 4 refers to expulsion, that is, that the Student was "constructively and actually" expelled on the basis that the School environment was made so hostile to the Student that he could not in effect attend the School and that ultimately his enrolment was transferred to Sydney Distance Education Public School however I do not understand that the Student was actually expelled.

The Complaint

1. Clause 10 of the POC alleges that during the 2020 school year, the School had agreed to facilitate alternative methods of assessment such as oral assessment, scribing or voice to text, however during the 2021 school year those alternative methods of assessment were unilaterally removed by the School and the School staff instructed SLSOs to force the Student practice handwriting NSW foundation style.
2. The respondent in its Points of Defence pleaded that the applicant is unable to raise this claim before the Tribunal as it did not form part of the complaint before ADB. I agree with the respondent's submission as I could not find any mention of the allegation in the documents the applicant provided to the ADB.
3. The applicant would need to make an application to amend her complaint pursuant to s104 of the Act. It would only be if the Tribunal exercised its discretion to amend the complaint that the allegation could be considered by the Tribunal at the final hearing.
4. The other issue that should be raised is the Complaint period. The President's report identifies the complaint period as 12 October 2021 to 12 October 2022. This may be because ADB received the applicant's complaint on 12 October 2022 and the ADB considered that 12 months is the appropriate period. In light of the additional material filed in the Tribunal, it is clear that Allegation 1 is that the supports or adjustments were provided to the Student in 2020 but were removed at the start of the first term in 2021 and that the applicant continued to advocate for the reintroduction of the supports throughout 2021 and 2022.
5. The POC contains a submission that the applicant seeks to amend the complaint to include an allegation against herself personally.
6. The applicant should be given an opportunity to make an application to amend the complaint pursuant to s 103 of the Act in regard to that matter as well as extending the period of the complaint from the start of the first school term in 2021 and in regard to the removal of the scribing or voice to text supports. If the applicant wishes to make an application to amend the complaint, it should be made in the proper manner, by filing an application for miscellaneous matters and providing reasons for seeking the order.
7. The rationale for the provision and the relevant considerations for granting an amendment to a complaint were set out in Chand v State Rail Authority [2007] NSWADTAP 54 ("Chand") and approved in Chand v RailCorp [2011] NSWCA 79 at [38]: The ordinary grammatical meaning of s 103(2) is that the Tribunal may amend the complaint either by adding complaints or by adding anything else, such as further allegations. The only qualification to the amendment power is that the additional complaint or other matter "was not included in the complaint as investigated by the President." Contrary to the Tribunal's decision, there is no implied qualification that the additional complaint or other matter occurred during the period of the complaint as investigated by the President. 38 There is no extrinsic material which sheds light on the rationale for s 103, but the intention of the legislature was to avoid the delay and potential duplication involved in having to lodge a fresh complaint with the President of the ADB in circumstances where a complaint involving the same or some of the same parties or the same or similar circumstances, is already before the Tribunal. The most likely source of additional complaints will be complaints that arise after the matter has been referred, but s 103 does not confine amendments to complaints of that kind. Relevant considerations when deciding whether to exercise the discretion to add a complaint is the age of the additional complaint and its relationship with the complaint that has already been referred. Contrary to the Tribunal's conclusion, the fact that the complaint did not occur within the period as investigated by the President, does not prevent it being added.
8. In Chand, the Tribunal stated: 13 The Act does not stipulate the matters the Tribunal should take into account when exercising its power to amend a complaint. The factors to be taken into account will vary from case to case and the weighting to be given to each a matter for the Tribunal. In addition to those factors listed in Chand, the following factors may be relevant: Whether the proposed amendment falls within one of the grounds for declinature available to the President (section 89B(2) and section 92(1)(a)). Whether the proposed amendment is futile because it seeks to pursue claims that are untenable. Whether the proposed amendment might obviate the need to lodge a new complaint with the President and avoid possible duplication of proceedings and additional costs. Whether the proposed amendment raises any issue of joinder. Whether the allegations contained in the proposed amendment forms part of a complaint lodged with the President that has yet to be determined or referred. Whether if refused/granted, any party might be prejudiced. Whether the party making the application is in default of previous orders.

Conclusion

1. The applicant has attempted to articulate her claim when making the complaint to the ADB and in this Tribunal. The respondent has made some attempts to engage with the claim. The applicant is likely to prove that the Student has a disability, that the School is an educational authority and that she was subjected to various detriments.
2. More complex factual and legal questions are whether one of the reasons for any of the School's conduct was the Student's disability and or her behaviour and whether the behaviour was a characteristic of the disability, was a manifestation of a disability or had no connection with a disability. These are all questions that I do not consider can be addressed or are appropriate to be addressed in a summary dismissal application.
3. This is a difficult case, some of the factual disputes have similarities with those in Purvis. However, based on all the material before me it is not apparent to me that the complaint lacks substance or is misconceived. There is nothing of substance to support a submission that the claims are frivolous or vexatious.
4. In the circumstances I believe it appropriate to attempt to express what I have identified as the applicant's potentially triable claims or allegations in terms which may be understood and answered by the respondent.
5. It is no disrespect to the applicant to point out that the Amended Points of Claim does not adequately set out the material facts of the alleged contraventions of the Act.
6. It is often the case in this Tribunal that self-represented litigants have difficulty in understanding what a pleading is or how to go about preparing one. Often, as in this case the document is discursive with attempts made to refer to particular sections of the Act. Like in this case there is confusion about the difference between direct discrimination, indirect discrimination, the notion of a comparator and reference to anti-discrimination law at the Federal level; Disability Discrimination Act 1992 (Cth). This Tribunal has no jurisdiction to deal with a complaint under that Act.
7. I do not consider in this case that the respondent or the Tribunal would be assisted by the applicant having a further opportunity to prepare a further amended Points of Claim as I am not confident that the applicant would have the capacity to do it. I also consider that President's Report, Amended Points of Claim together with the applicant's affidavit and annexures adequately explains the Student's claim and identifies for the respondent the case it must meet. There are some gaps which I have narrowed and both parties will be provided with an opportunity to file any further submissions and evidence.
8. The applicant can proceed with the following four allegations: 1. Throughout the Complaint Period, the School removed the adjustments it provided to the Student in 2020.These were: 1. a weighted lap pad; 2. access to a quiet space at break times; 3. access to a safe chill out space to be accessed on demand in the classroom; and 4. adjusted curriculum to cater for the Student's giftedness and interests. 1. Throughout the Complaint Period, the School reduced the level of SLSO support that had been in place since the Student commenced at the School. 2. The conduct of the School Principal on 21 October 2021 which included threatening to suspend the Student and communicating in an aggressive and hostile manner in front of the Student and the applicant as set out in paragraphs [38]-[49] of the applicant's affidavit. 3. The conduct of the School Principal on or about 28 February 2022. Ms Allen stated to the applicant that the School would no longer be able to "support" the Student and was no longer her "main school."
9. The first complaint alleges direct discrimination and in the alternative as indirect discrimination. The complaint alleges detriment within the meaning of s49L(2)(c) of the Act.
10. The second, third and fourth complaints are allegations of direct discrimination. The complaints allege detriment within the meaning of s49L(2)(c) of the Act.
11. The respondent is entitled to understand whether the applicant intends to rely on an actual or a hypothetical comparator in regard to the claims of direct discrimination. The applicant in her oral submissions referred to another student with a different disability. The applicant should be given an opportunity to provide details to the Tribunal and the respondent whether there is an actual comparator or a hypothetical comparator.
12. The applicant is to be provided with an opportunity to amend her complaint. If the applicant wishes to make an application to amend the complaint, she should do so without undue delay.

Orders

1. I make the following orders: 1. The respondent's application for miscellaneous orders (summary dismissal) made on 20 May 2024 is dismissed. 2. The proceeding is to be listed for directions at a date determined by the Registrar.

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

Amendments 09 July 2024 - Registrar signature appear twice at the end of the decision which is amended. 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: 09 July 2024