Phu v State of NSW

Supreme Court of Victoria|2008-06-27

Introduction 1 Mr Phu lodged a complaint of disability discrimination in the provision of education on behalf of his daughter, Helen Phu, on 18 October 2006. That complaint was referred to the Tribunal at Mr Phu's request and the Tribunal granted Mr Phu leave to proceed with the complaint of indirect disability discrimination on behalf of his daughter on 18 September 2007.

2 Ms Phu is a 13 year old girl with autism, severe global developmental delay and neurofibromatosis type 1. It is not in dispute that Ms Phu has these disabilities and that they are disabilities for the purposes of the Anti-Discrimination Act 1977 (NSW) [s. 4].

4 Mr Phu alleges that the respondent denied Ms Phu access or limited her access to benefits provided by the respondent contrary to section 49L(2)(a) of the Anti-Discrimination Act 1977 (NSW) [AD Act] and/or subjected her to a detriment contrary to section 49L(2)(c) of the AD Act.

5 It is not in dispute that as a result of her disabilities Ms Phu does not have verbal communication and engages in self-injurious behaviour at home and at school. For example, Ms Phu hits herself on her face and head and bites herself. It is also not in dispute that her self-injurious behaviour escalated in the later part of 2005 and intensified throughout 2006. The frequency of her self injurious behaviour declined during 2007 and 2008 although it still continues to occur.

6 During 2006 the school had ten classes and each class had a teacher and a full time teacher's aide. Ms Phu's class had 6 students on average during that year. In 2007 there were between 4 and 5 students in Ms Phu's class.

7 Mr Phu contended that the respondent indirectly discriminated against his daughter by imposing a requirement or condition that Ms Phu access her education without one to one care and support.

8 He contended that the failure to provide one to one care and support resulted in a detriment to his daughter in terms of her safety at school because she engaged in self injurious behaviour. He said it was an unsafe school environment. For example, he said that she displayed fist hitting and banged her head up against a brick wall up to 40-500 times a day as a result of the respondent's failure to provide one to one care and support for her.

9 Further he said that the failure to provide one on one care and support for his daughter at school meant she did not eat properly and that she would become malnourished as a result. He said that factors such as her food not being at the right temperature or her being hungry could trigger her self injurious behaviour. In addition he contended that the failure to provide one on one care and support also was detrimental to his daughter's ability to learn to the extent that she is able to. He maintained that the school had failed in their duty of care to his daughter.

10 He also raised the Disability Standards for Education 2005. These standards are made under the Disability Discrimination Act 1992 (Cth). These proceedings concern a complaint regarding the AD ACT and this Tribunal has no power to make any determination regarding a breach of the Disability Standards for Education 2005.

11 The complaint was lodged with the Anti-Discrimination Board on 18 October 2006. The period of the complaint referred to this Tribunal by the President of the Anti-Discrimination Board ran for 12 months prior to that date. Mr Phu requested that the Tribunal extend the complaint period to 2011 when his daughter will finish school.

12 Section 103 of the AD Act gives the Tribunal a discretion to amend a complaint on the application of a party Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54 at [37] - [38]. As the Appeal Panel of this Tribunal noted in that case The ordinary grammatical meaning of section 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." ….[at 37]

13 The respondent did not object to the complaint of indirect discrimination being amended under s. 103 of the AD Act to include the period up to and including 20 June 2008. The respondent conceded that it had imposed a condition that Ms Phu access her education without a full time one to one teacher's aide special and that condition continued to operate at the commencement of the hearing. A teacher's aide special is the term for a teacher's aide in a special school.

14 The Tribunal amended the complaint under s. 103 to include the period up to 20 June 2008. The Tribunal refused Mr Phu's application to amend the complaint beyond that date as to do so would cover several years of future events that have not occurred as yet. The respondent cannot be liable for conduct that has not yet occurred.

15 Consequently the period of the complaint runs from 19 October 2005 until 20 June 2008.

16 Mr Phu represented himself at the hearing. He was assisted by a community advocate from a multicultural disability advocacy service during the hearing. The advocate was not legally trained and provided support and assistance to him in preparing and arguing his case. His first language was not English and the Tribunal made an interpreter available for the duration of the hearing. Generally, Mr Phu preferred the proceedings to be conducted in English however the interpreter was available when required by Mr Phu.

17 The respondent was represented by a barrister, Mr Ginters.

18 The complaint is one of indirect discrimination. The definition of indirect disability discrimination is set out in s. 49B(1)(b) of the AD Act. That section states (1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such 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. 19 Discrimination legislation is remedial legislation and is given a generous construction [Dawson and Toohey JJ Waters v Public Transport Corporation (1991) 173 CLR 349 at 394].

20 The onus is on the Applicant to prove that indirect discrimination has occurred. Consequently the Applicant must prove each of the following: a requirement or condition was imposed on Ms Phu the requirement or condition is one with which Ms Phu did not or is not able to comply a substantially higher proportion of persons without Ms Phu's disability can comply with the requirement or condition and the requirement or condition is not reasonable in all the circumstances.

Further background and evidence 21 There has been a long history of dispute between Ms Phu's parents and the school and Department of Education and Training (the Department). While it was recognised by both parties that Ms Phu engaged in self injurious behaviour the parties differed on the best way to manage and prevent Ms Phu's self injurious behaviour and support her learning and feeding at school.

22 Mr Phu has consistently requested that the school provide a full time teacher's aide for his daughter to provide one to one care and support for her while at school. The Tribunal had a number of letters he had written in 2006 and 2007 to the school and others requesting a full time teacher's aide for his daughter. He contended that this was necessary to reduce the incidence of her self-injurious behaviour, to prevent her injuring herself, to ensure that she had sufficient support for feeding herself and to assist in her learning.

23 In addition, Mr Phu had requested that the school staff hold his daughter's hands down firmly when she was hitting herself in order to prevent her injuring herself. He considered that a one to one teacher's aide would assist with that.

24 It is not in dispute that the incidence of Ms Phu's self injurious behaviour escalated during 2006. Mr Phu's evidence is that Ms Phu hit herself between 50 and 400 times a day and that this behaviour reduced during early 2007. The reduction appears to have been gradual but followed the provision of additional care and support to Ms Phu at school and a number of other measures taken by the school and her treating doctors. That is explored in more detail later in this decision.

25 Mr Phu submitted that his daughter had the capacity to learn, only at a slower rate than normal. He maintained that she needed to be taught how to use the Picture Exchange Communication system as she was responding well to this and that the respondent had refused to provide this for her.

26 The evidence before us indicates that Ms Phu's self injurious behaviour began to escalate towards the end of 2005 and that this continued in 2006. Ms Murphy was the school principal from 2003 to June 2006. Her evidence was that a reduction in self injurious behaviour was included as an identified learning priority for Ms Phu in late 2005 and 2006. [R 17 at para 28]. She noted that Ms Phu's 2005 teacher had reported that Ms Phu's self injurious behaviour had settled down at the end of 2005.

27 Mr Phu complained to the school about his daughter's 2005 end of year report. He disputed the claim in that report that Ms Phu's self injurious behaviour had improved almost to the point of extinction by the end of the year and the progress indicated regarding her education. After approaching the Principal it was agreed that some changes would be made to the report.

28 . By early 2006 Ms Phu's self injurious behaviour had escalated to the extent that Ms Phu's parents, her teachers and the senior staff in the school were concerned about it. At the beginning of 2006 Ms Pisani, Ms Phu's class teacher, made Ms Murphy, the Principal, aware that Ms Phu was engaging in self injurious behaviour. At that stage Ms Murphy took the view that the school could manage it, that one to one support would not be necessary and she did not apply for any additional funding to assist the school with Ms Phu's difficulties.

29 Ms Pisani provided a written statement and gave oral evidence. Under cross examination Ms Pisani described Ms Phu's self injurious behaviour during 2006 as severe. She said the behaviour happened often and was an everyday occurrence. She told the Tribunal that it was difficult to care for the other students when Ms Phu displayed self injurious behaviour. Under cross examination she agreed that if she had had another teacher's aide at times it would have been better for Ms Phu. Her evidence was consistent and she impressed the Tribunal as a truthful witness who was genuinely concerned for her student's welfare. We accept her evidence.

30 It is evident that Mr Phu was concerned about his daughter from late 2005 and had raised his concerns consistently with the school. There was clearly a dispute between Mr Phu and the school about the best way to manage it. Ms Murphy was concerned that Mr Phu wanted staff to hold down Ms Phu's hands and that this was not consistent with the Department of Education's policy on restraint.

31 In February 2006 a meeting was held with Mr Phu to discuss leaning priorities for Ms Phu. At that meeting a psychologist also attended. During the period March to end May 2006 the staff collected data regarding Ms Phu and her self injurious behaviour. According to Ms Murphy the school had a number of conversations with the psychologist. Mr Phu had arranged for the psychologist to provide a report. Ms Murphy said that the school was anxious to get the psychologist's report which was not provided to the school until June 2006 just before Ms Murphy left the school. That report was in evidence before the Tribunal. Ms Murphy considered that the report needed to be changed as it included some strategies the school did not agree with, particularly regarding the restraint of Ms Phu. An occupational therapist was also engaged and a referral was also made to a speech therapist.

32 When Mr Phu attended the school on 16 May 2006 he observed his daughter in the playground. He told the Tribunal that she "…she hit herself seriously, banging her head to the wall and crying and the teacher's aide approach [sic] to help calm her down." [Transcript 25 June 2008 52:31-33]. He raised the staff ratio in the playground with the Principal and asked that his daughter spend her lunch times in the school mobility room where staff supervision was much greater. Ms Murphy agreed to his request soon after.

33 Ms Murphy left the school in mid 2006 and Ms Earp, an Assistant Principal at the school, took over as relieving principal. Ms Earp told the Tribunal that Ms Pisani informed her of concerns about Ms Phu and her self injurious behaviour at the end of week 2 in Term 3 of 2006. Ms Earp organised one to one support for Ms Phu's trips to and from school.

34 The Department of Education operates a Regional Student Services Support Program (Regional Program). Under that program funding is allocated by regions to schools for the support of students with particular needs when the immediate short term needs of a child cannot be met from within the school's resources. The funding is allocated on a case-by-case basis and is used for teacher or teacher's aide time. Ms Earp made an application for this funding to assist the school with Ms Phu because of concern about her self injurious behaviour.

35 It is not in dispute that additional resources were provided by the respondent to assist Ms Phu through that program. In the last term of 2006 a teacher's aide or university student was made available to assist with managing Ms Phu. The approach taken involved data collection to better understand the triggers for Ms Phu's self injurious behaviour and some additional supervision.

36 Mr Gallan, who became school principal in mid October 2006 provided a written statement and gave evidence regarding the school's use of university students who assisted the teachers and teachers' aides in the classroom. In his written statement he stated that from term 4 of 2006 as a result of a successful application for funding under the Regional Program an additional teacher's aide was employed to assist Ms Phu's class. Based on his evidence we are satisfied that a teacher, a teacher's aide, an additional teacher's aide and on most days a university student have been present in Ms Phu's class room from Term 4 in 2006 until 20 June 2008.

37 We are satisfied that the additional teacher's aide was provided by the respondent to deal with the concerns held by Mr Phu, his wife and school staff about Ms Phu's self injurious behaviour and the impact that had on her well being and ability to learn. We note that in late 2006 some of the time of the additional teacher's aide was spent on monitoring Ms Phu's self injurious behaviour and the school continued to try to work out what may trigger the behaviour as part of developing a program to respond to it.

38 Prior to that date the school had undertaken the other measures described above including some monitoring and data collection, referrals to some professionals and had held a number of meetings with Mr Phu and other relevant teachers and professionals.

39 On the respondent's evidence these measures have been focused on preventing and reducing Ms Phu's self injurious behaviour and encouraging her to develop independence and communication skills.

40 Mr Phu agreed that this additional support had been provided. He pointed to the reduction in his daughter's fist hitting, head banging and other self injurious behaviour as recorded by her class teacher Ms Kay in the period February 2007 to June 2008 and submitted that this was due to the additional assistance provided to his daughter.

41 By letter dated 3 June 2008 the Principal of Wairoa School, Mr Gallan, informed Mr Phu that the school believed that they were at the stage where they were able to begin fading out or reducing the amount of support that Ms Phu received. In terms of the time period of the complaint the level of support provided to his daughter had not been reduced by 20 June 2008. We now turn to the analysis of each of the elements of indirect discrimination.

42 We agree with the respondent's submission that the phase "requirement or condition" should be broadly construed so as to cover any form of qualification or prerequisite [Australian Iron &Steel v Banovic (1989) 168 CLR 165 at 185 per Dawson J; 195 -198. per McHugh J; New South Wales v Amery (2006) 80 ALJR at 63 per Gummow, Hayne and Crennan JJ]. In addition, the requirement or condition relied upon needs to be formulated with some precision. Waters v Public Transport Corporation (1991) 173 CLR 349 at 393 per Dawson and Toohey JJ and 406 per McHugh J.

43 The respondent did not dispute that a requirement had been imposed that Ms Phu access her education without a one to one full-time teacher's aide.

44 Mr Phu contended that the respondent had imposed a requirement or condition that his daughter access her education without one to one full time care and support. Mr Phu's own evidence indicates that he requested that the school provide a long term one on one teacher's aide for his daughter on many occasions. For example, that term is used in his letters to the School Principal, Mr Gallan dated 8 March 2007 and on 7, 10, 16 and 18 December 2007 in evidence before the Tribunal. It was also the term used by Mr Phu in correspondence to the Anti-Discrimination Board dated 17 October 2006 and 20 March 2007.

45 At the hearing Mr Phu raised another requirement that he said had been imposed on his daughter. He submitted that Ms Phu was required to access her education without a one to one teacher, as distinct from a teacher's aide. The respondent submitted that this requirement had not been raised previously, that it raised different questions of evidence and they had not come prepared to meet a case based on that requirement. We accept the respondent's submissions on this matter. Given that Mr Phu had not previously raised the matter of a requirement that Ms Phu access her education without a one to one teacher we consider it would have been prejudicial and unfair to allow the hearing to proceed on that basis.

46 The respondent submitted that although an additional teacher's aide was made available to Ms Phu's class that teacher's aide was not specifically allocated to Ms Phu. They submitted that the requirement imposed was that Ms Phu access her education without a full time teacher's aide.

47 We have carefully considered the evidence and consider that the respondent imposed a requirement or condition that Ms Phu access her education in the absence of full time one to one care and support from a teacher's aide for the period 19 October 2005 until the beginning of term 4 in October 2006. After that date we accept the respondent's evidence that Ms Phu's class had a teacher, a teacher's aide and an additional teacher's aide funded under the Regional Program. In addition a university student was usually present.

48 Although the teacher's aide was not formally allocated to Ms Phu, on the evidence before us we are satisfied that, in effect, from the February 2007 until 20 June 2008 Ms Phu had available to her full time one to one care and support from a teacher's aide. That accords with Mr Gallan's evidence that the teacher's aide was engaged for most of the day to assist Ms Phu with aspects of her program, including feeding, transition to other settings, in the school such as the playground, the hydrotherapy pool and the multi sensory room and hall. He made it clear under cross examination that the additional funding provided under the Regional Program to the school was for Ms Phu stating …that because the whole nature of the funding is it's to support - to support Helen so I can't see how I would've allocated that to other - other students. [Transcript 27 June 2008 27.7-11]

49 While at any given time one to one care and support for Ms Phu may have come from more than one person in the classroom we are satisfied that Ms Phu was not required to access her education in the absence of full-time one on one care and support from a teacher's aide for that period of time. We also accept Mr Gallan's evidence that by June 2008 the school considered that Ms Phu had improved to the point where the school could begin to gradually withdraw the level of support, although that level of support had not decreased by 20 June 2008.

Given that Ms Phu had access to one to one care and support from a teacher's aide for the period from February 2007 to 20 June 2008 her complaint cannot be substantiated for that time period.

50 In the time period 19 October 2005 to mid October 2006 it is evident that Ms Phu was required to access her education in the absence of full time care and support from a teacher's aide. The respondent concedes it did not provide a one to one teacher's aide for that period. On the respondent's evidence it is clear that each class that Ms Phu was in had a teacher, a teacher's aide and often a university student. In 2006 there were six students in her class. Consequently we are satisfied that a condition was imposed on Ms Phu that she access her education in the absence of full-time one to one care and support from a teacher's aide for the period 19 October 2005 to mid October 2006.

51 The evidence regarding Term 4 of 2006 is not as clear. On Mr Phu's evidence his daughter did not have full time one to one care and support from a teacher's aide for that period. On the respondent's evidence there was some further assistance for Ms Phu in her classroom during that period. Based on the evidence of Mr Gallan, the school Principal, it appears that the initial funding provided under the Regional Program in the last term of 2006 allowed the school to better identify the areas that caused Ms Phu distress and provide more support for her, for example in transitions from one area to another and with feeding.

52 After considering the evidence we are not satisfied that Ms Phu had access to full time one to one care and support from a teacher's aide for that term. Consequently we find that Ms Phu was required to comply with a requirement that she access her education in the absence of full time one to one care and support from a teacher's aide for the period 19 October 2005 until the end of the 2006 school year in December 2006.

The requirement or condition is one with which Ms Phu did not or is not able to comply 53 This has been interpreted broadly to include "can comply in practice" Mandla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548.The respondent submitted that this element could be established if it can be shown that a person with a disability will suffer serious disadvantage in complying with a requirement or condition, irrespective of whether that person "can cope" with the requirement or condition. The respondent referred the Tribunal to Hurst v Queensland [2006] 151 FCR 562 at [134] as authority for the proposition that "a disabled person's inability to achieve their full potential, in educational terms, can amount to a serious disadvantage."

54 Hurst v Queensland concerned the interpretation of s 6(c) of the Disability Discrimination Act 1992 (Cth). Under that section an aggrieved person had to prove that he or she was required to comply with a requirement or condition with which that person does not, or is not able to, comply. [at 25]. The case concerned a deaf student's ability to comply with a requirement imposed by an educational institution. The Court stated that the student was …….relevantly "not able to comply" with the requirement or condition that she be taught in English, without the assistance of Auslan. In our view, it is sufficient to satisfy that component of s. 6(c) that a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can "cope" with the requirement or condition. A disabled person's inability to achieve his or her full potential, in educational terms, can amount to serious disadvantage….[at 134], 55 Mr Phu contended that his daughter could not comply with the requirement to access her education in the absence of one to one support from a teacher's aide. In essence his case was that his daughter had suffered serious disadvantage in complying with that requirement or condition. He pointed to the evidence of his medical experts that without one on one care and support his daughter would display self injurious behaviour such as fist hitting like she had previously displayed and the probability that she would suffer retinal detachment and facial injury as a result.

56 He also contrasted her experience at home where he said that he and his family had provided full time one to one care for his daughter since March 2006 and that care had significantly reduced her self injurious behaviour at home. He said his daughter rarely hit herself at home because his family understood how to provide for all her wants, for example food, drinks, whether she was cold or hot and how to respond to her fears. In addition, he said that they were able to hold down her hands to prevent her hitting herself.

57 Similarly Mr Phu relied on the evidence from those who provided respite and vacation care for Ms Phu. Ms Averena, the manager of respite from a neighbourhood and support service gave evidence that there had been quite a few instances of Ms Phu hitting herself. Her service had decided to provide two support workers for her when they provided respite care for her. A respite worker from the Ethnic Childcare Family Community Services gave evidence that one to one care was provided to Ms Phu on respite due to the severity of her disabilities "….as well as her challenging behaviours, particularly when she is anxious or upset, she hits herself on the forehead, bridge of nose, chin and bangs her head to the wall together with biting her hands badly"." We accept that evidence.

58 As stated previously it was not in issue that Ms Phu engaged in self injurious behaviour. We are satisfied that particularly during the 2006 school year Ms Phu engaged in severe and repeated self injurious behaviour.

59 A DVD made by Mr Phu was in evidence. The DVD showed Ms Phu at home being asked to carry out particular activities, for example to pick up a particular object. Ms Phu had obvious difficulty in complying with the particular requests. Mr Phu contended that this together with the other evidence regarding his daughter's self injurious behaviour, lack of capacity to communicate and to eat sufficient food independently was evidence of her educational disadvantage.

60 The respondent submitted that it had not been established that Ms Phu was not able to comply with the requirement or condition that she access her education without a full time one on one teacher's aide or that she would suffer serious disadvantage in complying with it. Among other evidence the respondent relied on the evidence of Mr Gallan, the principal of the school that Ms Phu attends, that Ms Phu was capable of learning independently and that this had occurred in a schooling environment, absent the provision of a full time one on one teacher's aide. Mr Gallan had also given evidence that Ms Phu had progressed to a point where she was able to make eye contact and communicate through smiling, facial expressions and could follow simple verbal instructions. There was also evidence from her current class teacher Ms Kay that Ms Phu had developed an ability to understand prompts.

61 In addition, the respondent relied on the evidence of an educational expert Dr Kemp. Dr Kemp prepared a report dated 2 May 2008. Mr Phu did not require Dr Kemp for cross examination and did not obtain any evidence of his own from an educational expert. At the Tribunal's request the respondent arranged for Dr Kemp to attend the Tribunal. Both Mr Phu and the Tribunal members questioned Dr Kemp.

62 Dr Kemp is a senior lecturer at Macquarie University. She has a Masters of Arts in Special Education and a PhD, extensive experience as a special education teacher and consultant, and has spent the past 17 years involved in research and training of special education teachers at an undergraduate and post graduate level at Macquarie University Special Education Centre.

63 Dr Kemp reviewed the literature on self injurious behaviour and noted that it was difficult to treat but could result in serious injury if not treated. Complete elimination was reported to be rare.[at 2] The general consensus in the literature was that behavioural methods were the most effective, especially when a functional analysis of behaviour was used and that there may be advantages in combining pharmacological and behavioural approaches. [at 2]

64 Based on her review of the literature she concluded that behavioural treatment plans were the most appropriate method of dealing with self injurious behaviour and that these should include behaviour change and management. Protective devices should be used with caution and only as part of an overall plan. Physical restraint was not recommended as it could act as a reinforcer to self injurious behaviour [at p 3].

65 Dr Kemp noted that research on the effectiveness of teacher's aide support for children with disabilities had generally been restricted to the use of teacher's aides in inclusive rather than segregated settings. She had not found peer reviewed literature regarding the use of teacher's aides in specialist settings such as Wairoa school. Nevertheless in her opinion the allocation of a full-time teacher's aide to one student has the potential to create unnecessary dependence on the part of the student. She considered that it was easy for an untrained aide to do more for a student than is necessary and that could easily occur if the aide was providing one to one support for the entire day. She referred to the goal of maximising independence because of the positive effect on long term quality of life. She went onto state Ensuring that students develop skills in the areas of communication, self help and appropriate behaviour is the best way of promoting their independence. An alternative view to this, in the current situation, is the need for the student to be prevented from engaging in SIB (sic - stands for Self Injurious Behaviour ), a behaviour that has the potential to have serious consequences for health and well-being. [at 8]

66 In her opinion the reduction in Ms Phu's self injurious behaviour was likely to have been the result of the behaviour management strategies and programs to promote skills. She stated that the role of the additional aide was not clear and that It is clear, however, from the research relating to the management of SIB and the use of teachers' aides that any high level support should be reduced over time so that the person demonstrating SIB does not become dependent on one-to-one support and is not encouraged to use SIB to maintain this level of support.[at 8] 67 The respondent pointed to Dr Kemp's conclusions regarding Ms Phu and in particular her conclusion that "My observations of Ms Phu in the school would support the view of Wairoa staff that she has the potential to learn, albeit at a much slower rate than normal, and is capable of becoming more independent." [at 6]. She also noted that Ms Phu had "the potential to further develop both her skills and her independence with continued appropriate interventions. Good programs do not necessarily require one-to-one intervention. The best interventions are implemented by highly qualified staff and paraprofessionals closely supervised by them."[at 10].

68 Dr Kemp observed Ms Phu three times on one day and spoke to a number of staff, Mr Phu and others involved in her care. She saw no incidents of self injurious behaviour. She noted that Ms Phu had a severe level of intellectual disability and very limited communication skills. The report was requested of Dr Kemp in February 2008 and she provided it in early May 2008. The respondent noted Dr Kemp's evidence that school staff had indicated that Ms Phu was capable of learning independently and had made good progress.

69 The Tribunal found Dr Kemp's evidence well reasoned and helpful in assessing Ms Phu's ability to comply with the requirement at the time her assessment was conducted. We note that Dr Kemp's discussions with staff regarding Ms Phu's capacity, her observations of Ms Phu and the formulation of her expert opinion all took place in early 2008 after the school and the Department of Education had put in place an intensive program to manage Ms Phu's self injurious behaviour and had provided an additional full time teacher's aide in her classroom for over a year. By that stage the school had also had the advice of experts, had collected and analysed data about the incidence of Ms Phu's self injurious behaviour and had implemented a number of strategies to address it. Similarly a DVD that demonstrated Ms Phu clearly being able to carry out simple instructions and respond to prompts was made by the school after much of this intervention had occurred.

Reports from Clinicians tendered by Mr Phu 70 The Applicant tendered three documents from medically qualified witnesses. These were a report from Dr Mansour dated 4 September 2007, his daughter's treating paediatrician, a letter to the Tribunal from Dr Nguyen dated 4 February 2008, his family's general practitioner and a letter from a Dr Nunn, a psychiatrist, to Dr Mansour dated 10 March 2008 .

71 The respondent submitted that this material should be given no weight for a number of reasons. Firstly the material did not speak to the question of whether Ms Phu had been indirectly discriminated against in the provision of education contending that the material was either clinically focused or represented lay opinion. Secondly it was opinion evidence that was fundamentally unreliable as it was from clinicians who did not have experience in implementing programs in a school setting. The respondent relied on the expert opinion of Dr Kemp contending that the most qualified opinions came from those with special education qualifications. Thirdly the respondent contended that the material did not satisfy the requirements of expert evidence and would not assist the Tribunal in considering the matter. The respondent relied on the Tribunal's Practice Note no 14 regarding expert evidence, Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 particularly at [85] and Legal Services Commissioner v Galitsky [2008] NSW ADT 48 at [39].

72 This Tribunal is not bound by the rules of evidence. Dr Mansour's report to the Tribunal did not meet the requirements of the Administrative Decisions Tribunal Practice Note 14. That note sets out the procedures this Tribunal follows when dealing with expert evidence and reports. Among other requirements expert reports must set out: The person's qualifications as an expert; The facts, matters and assumptions on which the opinions in the report are based; Reasons for each opinion expressed and Any literature or any other materials utilised in support of the opinions. 73 Although his report did not clearly set out all of these matters he was available for cross examination at the Tribunal and gave oral evidence. He is Ms Phu's treating paediatrician and we are satisfied on the basis of his oral evidence that he is qualified and has an area of medical expertise and knowledge in Ms Phu's conditions including autism. He acknowledged that he had based his opinion on his clinical assessment and was able to satisfy the Tribunal as to the facts, matters and assumption on which his opinion was based and the reasons for his opinions. We considered him an impressive witness who was candid and measured in his evidence. He readily acknowledged that he was not an educational expert and had not visited the school.

74 We accept his evidence that towards the end of 2005 and through to 2006 Ms Phu had severe autism, she had not developed any speech, she had fleeting eye contact if any and had a behaviour of sitting in one position until she became unsettled or bored and started to manifest signs of self injury. He noted that Ms Phu commenced on new medication in early 2008 and that she had improved since then. In particular he noted that she was less anxious, more responsive to demands placed on her and that her eye contact had slightly improved.

75 Dr Mansour's evidence was that there was a risk that the child could sustain retinal damage and brain injury if she continued to hit herself in the frontal area of her head. Dr Mansour's opinion was that Ms Phu required one on one supervision at school and we accept that opinion. When questioned about why he said one to one care was required for 12 months Dr Mansour said he was agreeing with Dr Nunn's opinion that a minimum of 12 months was required and said that "Ideally it should go on constantly until the behaviour pattern is controlled." [Transcript 23 June 2008 p 27 at 2].

76 When questioned by the respondent Dr Mansour agreed that regardless of whether Ms Phu had a one on one teacher's aide that would not provide a guarantee that her self injurious behaviour could be eliminated. In addition, it was evident that the self injurious behaviour could occur without a trigger and could happen spontaneously and very quickly. His evidence was to the effect that a one on one person had to get to know the child's behavior patterns to intervene before the self injurious behaviour established itself. He agreed with the proposition that regardless of how well one understood the student there would be circumstances where the student engaged in self injurious behaviour spontaneously but noted that "…..we have to minimise. We have to prevent the complications of self-injurious behaviour." [ Transcript 23 June 2006 p 41 at 31-32 ]

77 He agreed with the respondent's suggestion that one of the ways to do so was to understand the "functional triggers to that behaviour" and to remove them as much as you were able to. He agreed that distraction or removal from the triggers was appropriate when a person was engaged in self injurious behaviour. In addition, he agreed that restraining a student could lead to an exacerbation and entrenchment of the self injurious behaviour. In his opinion holding a person's hands down to prevent them hitting did not work, was dangerous and made the self-injurious behaviour worse.

78 Dr Nunn. The Tribunal admitted the letter from Dr Nunn to Dr Mansour. Dr Mansour made reference to the letter. The respondent required Dr Nunn for cross examination. The Applicant was not able to make Dr Nunn available and consequently, while we accept that he wrote a letter to Dr Mansour of that date, we have given no weight to his opinion.

79 Dr Nguyen. Dr Ngyuen's letter to the Tribunal did not meet the requirements of the Tribunal's practice note however he was available for cross examination and gave oral evidence before the Tribunal. He is Ms Phu's treating general practitioner. He had no specific expertise in Ms Phu's specific disabilities, for example autism and self injurious behaviour. In our view his evidence is of marginal value and added little to that of Dr Mansour.

80 Given that the time period of the complaint that meets the first requirement for an indirect discrimination complaint is the period 19 October 2005 to December 2006 we have focused on the available evidence regarding that period of time.

81 We have already referred to the difficulty with some of the respondent's evidence regarding what Ms Phu could do in early 2008 or at the time of the hearing. That does not address the issue of whether she could comply with the requirement in the relevant time period.

82 On the evidence of Ms Pisani, Ms Murphy, Ms Earp and Mr Gallan it is evident that in 2006 Ms Phu was engaging in a significant level of self injurious behaviour at school. After carefully considering their evidence and that of Mr Phu and Dr Mansour we are satisfied that Ms Phu suffered serious disadvantage in achieving her potential in educational terms during the 2006 school year. She was unable to comply with the condition imposed during 2006. The evidence is not as clear or compelling for 2005. There is some conflicting evidence as to whether things improved towards the end of 2005 before deteriorating again in 2006. We have insufficient evidence to make a finding in regard to the period 19 October 2005 to the end of that school year.

Substantially higher proportion of those without Ms Phu's disabilities can comply with the requirement or condition 83 The respondent stated that it accepted that a substantially higher proportion of students who do not have Ms Phu's disabilities comply or are able to comply with the requirement or condition that they access education without a full time one on one teacher's aide. We accept that submission. On the evidence before us it was clear that it was a very rare exception for any student to have a one to one care and support from a teacher's aide or any form of ongoing one to one care and support in the classroom or at school. We are satisfied that a substantially higher proportion of students without Ms Phu's disabilities can comply with the requirement.

Not reasonable in all the circumstances of the case

84 The onus is on the Applicant to prove that a requirement or condition is not reasonable in all the circumstances of the case. State of Victoria v Turner [2009] VSC 66 (4 March 2009) at 100, Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 11. As contended by the respondent the test of whether the requirement or condition is "not reasonable" is an objective one.

85 The High Court provided guidance in Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 at 378 The Court approved the statement of Bowen CJ and Gummow J in Styles where they stated The test of reasonableness is less demanding than one of necessity, but more demanding that a test of convenience… the criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other, all the circumstances must be taken into account. [ see Dawson and Toohey JJ 395-396, Mason and Gaudron J at 365 , Brennan J at 378 and Deane J at 383] 86 Brennan J said that reasonableness must be determined by reference to the activity ... in which the putative discriminator is engaged. Provided the purpose of the activity ... is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity ... There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity ...; secondly, whether the activity could be performed ... without imposing a requirement or condition that is discriminatory ... or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity ... and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable. 87 All relevant factors must be weighed.

88 The relevant period of time is the 2006 school year given that we were not satisfied that Ms Phu could not comply with the requirement in 2005.

89 Mr Phu's case is that the requirement is not reasonable for a number of reasons. Firstly because without one to one care and support from a teacher's aide his daughter's self injurious behaviour was serious, resulted in injury to her face and hands and left her at risk of retinal damage. As stated above it is not in contention that Ms Phu engaged in self injurious behaviour. We have already made findings that during 2006 that behaviour was significant. Based on the evidence of Dr Mansour, the data sheets collated by the school and Mr Phu, Mr Phu's evidence of observing her harming herself and the damage to her face and hands together with photos provided by Mr Phu, we accept that she did hurt herself and that the risks of her self injurious behaviour included potential retinal damage. The consequences of Ms Phu's self injurious behaviour were clearly serious and that was recognised by Mr Phu and by the school.

90 Although not expressed exactly in these terms. Secondly Mr Phu submits that by having a person focused on his daughter they would get to know her needs and wants and be able to respond to her in a way that would reduce significantly, if not completely eradicate, her behaviour and consequently her risk of injury. So for example, they could make sure she was not too hot or too cold, could make sure her food was at the right temperature and could protect her so she felt safe. That would prevent her becoming distressed and injuring herself. He relied on the success he had at home when his family used this strategy and the evidence of his medical experts that we have dealt with previously. He also put forward evidence regarding the way that respite services dealt with his daughter by providing one on one care and, in one instance, two on one care of his daughter.

91 It is clear on the evidence that Mr Phu also considered, at least in 2006, that by having a one to one care and support from a teacher's aide for his daughter they could also hold down her hands firmly to stop her hitting herself and thus prevent injury to her.

92 Thirdly Mr Phu points to the impact of the failure to provide one on one care and support for his daughter on her educational outcomes. Again though not framed exactly in these terms he submits that due to her self injurious behaviour and her disabilities she has suffered serious educational disadvantage. For example, Ms Phu is unable to follow prompts or requests and is unable to feed herself sufficient food independently.

93 Fourthly he pointed to the existence of the Regional Program funding and Ms Murphy and then Ms Earp's failure to take up his suggestions to provide one on one care for his daughter.

94 The respondent submitted that the requirement characterised by them as that "Ms Phu access education without a full time, one on one, teachers aide special" had not been shown "not to be objectively reasonable having regard to the circumstances of the case." Australian Medical Council v Wilson (1996) 68 FCR 46 at 61-62.

95 Firstly the respondent submitted that the expert evidence spoke against the propriety of a full time, one on one teacher's aide special in this case. The provision of one would not guarantee that Ms Phu's self injurious behaviour will be eliminated.

96 Although acknowledging that the need for additional teachers' aides could arise from time to time the respondent relied on Dr Kemp's observation that the Department's Regional program was presumed to be short term assistance and relied on an appropriate program being in place to obviate a long term need for an aide. In Dr Kemp's view short term additional aide support could assist with intensive programs designed to address issues such as Ms Phu's self injurious behaviour in 2006, however that support should be short term and withdrawn when not needed. The decision about when it was not needed should be made by school staff with relevant expertise and experience. [at para 74 repondent's final submissions].

97 The respondent relied on Dr Kemp's opinion that the provision of a full time one on one aide would not be in Ms Phu's best interests as it could lead to over dependence and that such support should be reduced over time. The respondent also points to the evidence of Ms Murphy that stated in her view that it would act as a disincentive to Ms Phu to learn skills and would lead to "learned helplessness", dependence and limit her options in later life [at para 82 respondent's final submissions]. The respondent also referred to similar views held by a number of their witnesses to that effect.

98 The respondent relied on concerns expert witnesses held about the use of restraint by an aide. Dr Kemp's opinion was that restraint could maintain self injurious behaviour and there was a potential that the student and aide could be injured. Dr Mansour's evidence was that it would not be effective and that it could be a dangerous technique to use. It could lead to an exacerbation and entrenchment of the self injurious behaviour. The respondent also pointed to Departmental policies regarding restraint. In effect these are that it is a last resort , it should only occur where there is an immediate risk of injury to persons or an immediate risk of serious damage to property, should only be what is reasonably necessary having regard to the specific circumstances and must not be used if there is a risk to staff.

99 The respondent submitted that the Department had put in considerable resources to assist Ms Phu. They drew the Tribunal's attention to the teacher/teachers aide ratio of 1 to 3 and that the ratio in Ms Phu's class was often better than that. They referred to initiatives for Ms Phu including the development of individual learning priorities in collaboration with her family and other key personnel, the development of visual supports and alternative forms of communication that could be used to assist her express and indicate her needs, functional assessment and staff training, the recording of data to provide insights into the causes of her self injurious behaviour and the development of management plans to deal with self injurious behaviour and redirect her from it.

100 In addition the respondent had accessed the Regional program funding to provide additional aide support for Ms Phu's class. The Department of Ageing, Disability and Home Care had developed a program to address Ms Phu's self injurious behaviour and teach her skills. Ms Phu's educational program had been constantly monitored and adjusted so that she could achieve her educational outcomes.

101 The respondent also submitted that issues of practicality and finite resources were a relevant factor. The respondent contended that providing a full-time one on one teacher's aide special would require more resources than a full time aide.

102 The respondent also submitted that acceding to this particular complaint had the potential to provide a vehicle through which demands could be made on behalf of other students with disabilities that they be provided with a full time one on one teacher's aide. The respondent contended that In the context of the levels of support already provided by the Department such an outcome would impose unreasonable burdens on the Department in terms of:

a. The resources and demands associated with the need to obtain and place appropriately qualified and trained teachers' aides special; and

b. The need to distribute finite financial resources. That is the increased costs associated with the provision of full time, one on one teachers' aides special would come at a cost o other programs funded by the Department. 103 The Department noted that there were approximately 33,000 students with disabilities in schools. Of these more than 3,900 students were enrolled in special schools.

104 The respondent contended that if the Department was required to provide Ms Phu with a full time one on one teacher's aide special similar demands would be made by other students with confirmed disabilities. The respondent points to the difficulties that would create in drawing the line between those students who will be provided with a full time one on one teacher's aide and those who will not. The respondent referred to New South Wales v Amery (2006) 80ALR 753 at [2], [21] - [25].

Discussion 105 The Tribunal notes that this is a case where all parties were concerned about the safety and educational progress of Ms Phu. The potential consequences of her self injurious behaviour were serious both in terms of the risk to her safety and the educational disadvantage it led to.

106 Having heard evidence from Mr Phu he was a concerned parent and clearly wanted what was best for his daughter's safety and education. The school staff who gave evidence before us impressed us as dedicated educational professionals who were concerned about Ms Phu's self injurious behaviour and wanted to find ways to reduce and manage it as well as concentrate on Ms Phu's educational goals.

107 It is relevant to consider that during 2006 the parties were both trying to understand the escalation in Ms Phu's self injurious behaviour. A close examination of the evidence reveals that the school was taking steps in the first half of 2006 to better understand what was triggering that behaviour, they met with Mr Phu and other professionals, they had made some referrals to professionals on Ms Phu's behalf and they collected data and were working on strategies to address their concerns about Ms Phu. The Principal responded quickly to Mr Phu's request to move his daughter from the playground at lunch time to the mobility room so that she could be better supervised.

108 It is unfortunate that it took so long for the psychologists report to be completed and in retrospect it is evident that in the first half of 2006 the Principal could have taken some more proactive steps to get some further assistance for Ms Phu. However her evidence was that at the time she thought that the school could deal with it without needing to get assistance from other sources such as the Regional Program.

109 Mr Phu disagreed and was understandably very concerned about his daughter. He had formed the view early on that the way to manage the behaviour was by having someone with Ms Phu or available to her at all times to minimise the risk of her engaging in self injurious behaviour. He eventually used this strategy at home and found it worked.

110 Once the psychologist's report arrived there was contention between the applicant and the respondent about the report. The psychologist was an intern and the school disagreed with some of her suggestions particularly in regard to her recommendations about holding down Ms Phu's hands firmly and the school requested changes to the report which were made.

111 Once the report was settled the school then set about complying with the program recommended. In addition, further steps outlined earlier were taken including more assistance for Ms Phu.

112 The question is not what would have been ideally done or what could have been done with the benefit of hindsight.

113 In this instance taking into account the steps that were taken we are not satisfied that the respondent acted in a way that was not reasonable by imposing the requirement that in 2006 Ms Phu access her education in the absence of full-time one to one care and support from a teachers aide.

115 In his final submissions Mr Phu asked the Tribunal to amend the complaint to include a complaint of direct disability discrimination in education. At the initial hearing to determine whether Mr Phu was granted leave to proceed with his complaint before this Tribunal under s 96 (1) of the AD Act Mr Phu was represented. At that stage his representative said that a complaint of direct discrimination was not pressed. The Tribunal (differently constituted) granted leave to proceed with a complaint of indirect discrimination. Given these circumstances, and that that matter of direct discrimination was not raised by Mr Phu until well into the proceedings, it would be prejudicial and unfair to amend the complaint. Consequently the Tribunal has not amended the complaint to include direct discrimination.

116 In his final submissions Mr Phu raised the conduct of Mr Pilon, the student support co-ordinator for disability programmes employed by the respondent.

117 The Tribunal understood Mr Phu to be asking that the Tribunal find Mr Pilon liable for indirectly discriminating against Ms Phu by refusing to recommend a full time teacher's aide for her. At the end of the hearing Mr Phu also raised section 52 and s 50 of the AD Act, the aiding and abetting and the victimisation provisions of the Act. Although he did not specifically apply for Mr Pilon to be joined as a respondent to the matter our understanding is that Mr Phu wanted the Tribunal to make some findings against Mr Pilon under s 49L, s 52 and, or s 50.

118 There are several difficulties with this request. Firstly Mr Pilon is not an educational authority and consequently cannot be held liable for a breach of section 49 L of the AD Act.

119 Secondly the complaint before the Tribunal as indicated above was one of indirect discrimination and these additional matters were not raised until the end of the hearing. No application was made to join Mr Pilon and he was not on notice of these matters. Aside from the fact that Mr Phu was not granted leave to bring these applications in the first instance before the Tribunal it would be prejudicial and unfair to allow him to do so at such a late stage in the proceedings.

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.

CITATION: Phu v State of NSW (NSW Department of Education and Training) (No 3) [2009] NSWADT 282

Australian Iron & Steel v Banovic (1989) 168 CLR 165 Australian Medical Council v Wilson (1996) 68 FCR 46 Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54 Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 Hurst v Queensland [2006] 151 FCR 562 CASES CITED: Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 Mandla v Dowell Lee [1982] UKHL 7 Legal Services Commissioner v Galitsky [2008] NSW ADT 48 New South Wales v Amery (2006) 80 ALR 753 State of Victoria v Turner [2009] VSC 66 (4 March 2009) Waters v Public Transport Corporation (1991) 173 CLR 349

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