Secretary, Department of Education v FSO

The Tribunal

1. We preface these remarks by noting that the Tribunal did not expressly link any of its findings to any of the seven Complaints.
2. The following Complaints were made: 1. The Department discriminated against the son by requiring him to use handwriting in school rather than a laptop. The use of a laptop is one of the strategies in SMART Goal 1. The mother said the school should have made the son use a laptop, the Department said the teacher let the son hand write when he said he wanted to. The Tribunal found in para 105 "Nor is permitting (the son) to handwriting (sic) at times a breach of the agreements reached between the parties as the agreement was that the laptop would be used "when needed". We infer the Tribunal did not make a finding of discrimination in relation to Complaint 1. 2. Complaints 2, 3, 4 and 5 simply reproduced SMART goals 1, 2, 3, and 4 respectively. The Complaints assert, in respect of each of them, that the Department discriminated against the son on the grounds of his disability contrary to s 49B(1)(b) of the AD Act by requiring him to comply with a requirement or condition, being each of the SMART goals. Each requirement was pleaded as not being reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the PLSP and their implementation) and the son's ability. 3. Complaint 6 asserted that the Department discriminated against the son on the ground of his disability contrary to s 49L(2)(c) of the AD Act by subjecting him to a detriment, namely a decline in his learning outcomes. 4. Complaint 7 asserted that the Department discriminated against the son on the ground of his disability contrary to section 49L(2)(a) of the AD Act by denying him access to benefits provided by the school, specifically each of the strategies identified in the PLSP.

Outline of the Tribunal decision

1. The Tribunal made the following findings: 1. the PLSP was more than a "tool" or a "guideline" as submitted by the Department. It was a commitment by the school to the agreed strategies which were required to ensure that the son's learning needs were met. 2. The PLSP provided, in SMART Goal 1, "Team teaching in writing with LaST 4 times a week". The Tribunal found that those words were somewhat vague and did not suggest that the whole of the time of a LaST would be spent on the son four times per week. The Tribunal found that the LaST was employed only three days per week and had not claimed in her statement that she engaged with the son in ''Team teaching in writing 4 times a week''. The Tribunal found that the school had not adhered to the PLSP. 3. There are references throughout the SMART Goals to the involvement of an SLSO, for example to work as a scribe when needed and give instructions during play sessions. The Tribunal found that while the extent of the involvement of the SLSO was not quantified in the PLSP, a perusal of the document showed that it had been agreed that the SLSO would be quite involved in the son's education and would work with him, in relation to various tasks. The Tribunal held that while the SLSO had some involvement, the SLSO did not work with the son to the extent set out in the PLSP. 4. The Tribunal accepted the evidence of the mother and found that the school did not regularly send homework when the son missed class to attend therapy, the mother did not receive a USB stick with his handwriting to enable monitoring by a therapist and the son had significantly fewer typing lessons that had been agreed to in the PLSP. 5. The Tribunal found the Department's failure to adhere to the agreement as to what would constitute reasonable adjustments to the son's learning subjected him to a test that impacted upon him differentially, namely that he absorb and learn as did other students without his disabilities when he did not have the agreed support from the LaST or the SLSO. As the PLSP was a binding agreement, the school could not make changes without engaging with the parents. It was not reasonable in the circumstances for him not to receive the level of support set out in the PLSP. 6. The Tribunal held that the failure to fully implement the agreed strategies constituted discrimination, in imposing a requirement that the son achieve reasonable learning outcomes without full implementation of the PLSP. His learning outcomes were worse than they would otherwise have been if the strategies had been fully implemented. Not to implement the PLSP without formally varying it constituted discrimination, imposing a test, namely that the son reach the learning goals without the assistance that the parties had agreed was necessary for him to have an equivalent opportunity to achieve those goals as the opportunities afforded to other students without his disabilities.
2. The remedial Orders made by the Tribunal were: 1. The Department to give the mother and the son a written apology for regarding the PLSP as a "guideline" that could be varied without the agreement of the parents, treating professionals or the son and reaffirming their commitment to excellence in the teaching of students with disabilities. 2. The Department to ensure that, within 12 months, teachers at the school who taught students with disabilities undergo formal training in the standards and departmental policies applicable to teaching students with disabilities if they had not already done so. 3. If the son was, at 13 February 2023, a student in a public school in NSW, then, the Department was to review by 10 April 2023 whether teachers in that school had undergone adequate training in the standards and departmental policies applicable to teaching students with disabilities and ensure that, if not already undertaken, the training was provided to them within 6 months. 4. The Department was to, within 6 months, review the extent to which all teachers employed by the Department had undergone adequate training in the standards and departmental policies applicable to teaching students with disabilities and ensure that teachers who are responsible for the education of students with disabilities have undergone that training.
3. Those Orders have been stayed pending the outcome of this Appeal.

The Appeal

1. An appeal is generally from the Orders made, not the reasons (TriCare (Hastings) Limited v Allen [2015] NSWCA 344 at [10]). Where the Order appealed from is correct, but the reasons erroneous, the appeal will generally be dismissed (Driclad Pty Ltd v Commissioner of Taxation (Cth) [1968] HCA 91; (1968) 121 CLR 45 at 64; Wang & Liu v State of New South Wales [2011] NSWCA 321 at [23]).
2. The Grounds of Appeal, as amended, are:

Ground 1

1. It is unclear the basis on which the Tribunal came to its decision. It appears that Point 6 in the Scope of the Complaint was upheld, with reliance upon a requirement or condition that was not pleaded. By doing so, the Tribunal, including but not limited to: 1. Exceeded its jurisdiction by determining a claim that was not before it. 2. Failed to afford the Respondent procedural fairness. 3. Failed to decide the claim that was before it. 4. Failed to give adequate reasons.
2. The Department has submitted that the Tribunal formulated its own purported requirement or condition for the purpose of s 49B(1)(b) of the AD Act being: 1. To achieve reasonable learning outcomes without full implementation of the IEP/PLSP (Decision, at [119]); and 2. To reach each of the learning goals without the assistance that the parties had agreed was necessary in order for the son to have an equivalent opportunity to achieve those learning goals to the opportunities that other students without his's disabilities had (Decision, at [124]).
3. The Department says those two formulations of the requirement were different, neither was articulated in the Complaint, nor were the terms adverted to by the Tribunal during the hearing. Accordingly the Department had been deprived of the opportunity to address the requirement at the hearing, and thus denied procedural fairness.
4. The mother submitted that the reasoning of the Tribunal should be upheld.
5. This is an issue which arises out of the Tribunal not expressly making findings in relation to each Complaint.
6. We do not agree that the Tribunal reformulated its definition of a requirement as submitted by the Department. Its findings throughout the decision refer to the "requirement or condition" as being the supports and strategies set out in SMART Goals 1, 2, 3 and 4 as articulated in Complaints 2, 3, 4 and 5.
7. We have considered later in these reasons whether we can conclude that the Tribunal did find that any of the Complaints were established. However we do not accept, as we infer from the submission by the Department, that some other "requirement or condition" was found or relied on by the Tribunal.

Ground 2

1. The Tribunal exceeded its jurisdiction in making the Orders including but not limited to: 1. Order 2 to 4 did not constitute reasonable acts to redress the loss or damage suffered, as required by s108(2)(c) Anti-Discrimination Act 1977 (NSW) (the AD Act). 2. The broad nature of Order 4 was not appropriate in respect of s108(3) the AD Act.
2. In relation to (a), the mother says that the Tribunal found two of the core beliefs of the Department were unlawful - that the adjustments in the PLSP were only included as a guide for the teacher, and that the level of implementation of those adjustments could be changed by the principal based on operational requirements. It was therefore reasonable to conclude there were systemic issues within the Department which were likely to have been a significant contributing factor to the discrimination experienced by the son, and likely other students. A review of training, and the provision of adequate training in the standards and policies of the Department, is, she submitted, therefore entirely reasonable.
3. In relation to (b), the mother says that evidence was provided which showed this issue extended beyond just the son. The extension of Orders to protect other students with a disability from similar discrimination was appropriate.
4. Later in these Reasons we explain why we have found that the Tribunal did not find the Complaint substantiated in whole or in part and that, without such a finding, there is no jurisdiction to make a remedial Order. In these circumstances we do not consider it necessary to consider this Ground of the Appeal.

Ground 4

1. The Tribunal failed to afford the Respondent procedural fairness, including but not limited to: 1. The Tribunal did not give the Respondent the opportunity to make submissions in relation to Order 4, which was not sought by the Applicant. 2. The Tribunal did not raise with the Respondent that it considered Point 6 of the Scope of the Claim to be a stand-alone allegation that could be determined without reference to the particular allegations of indirect discrimination in Points 1 to 5.
2. The Department says there was a denial of procedural fairness by the Tribunal by the making of the last remedial Order in circumstances where it was not sought by the mother and it was not raised as a potential Order by the Tribunal with the Department before handing down the Decision. If the Department had been given that opportunity it would have established the patent excessiveness of the Order so that it is unlikely it would have been made.
3. The mother relies on page 16 of her submissions to the Tribunal on 23 March 2021. In that document the mother asked the Tribunal to order all staff at the school to attend training on discrimination in education, delivered by an external provider, to ensure that unlawful conduct is clearly understood and to prevent continuance or a repeat offence.
4. The mother's submission to the Tribunal is in similar to the second Order made by the Tribunal.
5. We are satisfied that there was a denial of procedural fairness by the Tribunal in the making of Order 4 in circumstances where it was not sought by the mother and it was not raised as a potential Order by the Tribunal with the Department before handing down the Decision.

Ground 5

1. The Tribunal failed to give reasons, including but not limited to: 1. The Tribunal failed to give reasons relating to which part of the claim had been substantiated. 2. The Tribunal failed to give reasons for the finding that that the SLSO did not work with (the son) to the extent set out in the IEP.
2. In relation to the whole of Ground 5, the mother says that it is unclear what reasons are being sought.
3. Ground 5(a) is subsumed by Ground 11(a) which we have considered later in these Reasons.
4. In relation to Ground 5(b) the Department says there was no proper basis set out in the Decision as to why the Tribunal accepted the assertion of the mother that the SLSO had not attended on the son to the extent envisaged by the PLSP. The Department further submitted that there was no such reasoning because there was insufficient evidence to support such reasoning.
5. There was evidence from the mother and from the school as to the support provided by the SLSO.
6. We bear in mind that the obligation of a Tribunal to give reasons does not mirror that of a Court (NSW Land and Housing Corporation v Orr [2019] NSWCA 231 at [114]).
7. Nevertheless there are certain minimum characteristics that a Tribunal's reasons must possess: 1. the findings on material questions of fact, referring to the evidence or other material on which those findings were based, 2. the Tribunal's understanding of the applicable law, and 3. the reasoning processes that lead the Tribunal to the conclusions it made (S 62(3) of the NCAT Act).
8. In circumstances where the Tribunal decision discloses that the extent of the involvement of the SLSO was not quantified in the PLSP, we agree with the submission made by the Department that the basis on which the Tribunal found that the SLSO did not work with the son to the extent set out in the PLSP has not been explained in the Tribunal's decision.
9. We are satisfied that the Tribunal has not set out the reasoning process that led to the conclusion it made.

Ground 6

1. There was no evidence to support a finding of fact made by the Tribunal, including but not limited to: 1. The Tribunal found that there was a change in the employment of the SLSO which impacted the provision of support to (the son), where there was no evidence to support that finding. 2. The Tribunal found that there was a causal link between the alleged discriminatory conduct and (the son's) detriment (being a decline in learning outcomes) where there was no evidence to support that finding.
2. The Department says that the lack of evidence on the question of the change in the employment of the SLSO and the consequence of this in terms of the provision of the adjustments under the PLSP meant that the finding of the Tribunal was unsound. The finding that the son had suffered a detriment in the form of diminished learning outcomes was solely based on an assertion from the bar table by the mother which was wholly insufficient to discharge the mother's onus.
3. The mother says it is unclear what reasons are being sought and that there was evidence to support a causal link between the alleged discriminatory conduct and the son's detriment. That evidence has not been identified by the mother in her submission.
4. We are of the view that the Tribunal's finding has been misstated by the Department. The Tribunal relied on a report from a psychologist who had assessed the son in July 2018 and again in October 2019. The psychologist concluded that in the six months before October 2019 the son's sentence composition scores had fallen, his spelling remained consistent and his written expression performance measures were all ''lower than expected on the basis of his intellect" (at para 13).
5. The Tribunal accepted that opinion.
6. Accordingly, the finding that some of the son's performance measures were lower than expected, was based on expert evidence.
7. However the connection between this conclusion and the finding that this was causally linked to a change in the employment of the SLSO has not been explained by the Tribunal which simply concluded at para 122 that, despite the fact that his learning and other difficulties may have contributed to his learning outcomes, the discrimination in failing to make available all reasonable learning adjustments was a causal factor in the son not achieving the learning outcomes that were reasonably forecast in the PLSP.
8. We are again satisfied that the Tribunal has not set out the reasoning process that led to the conclusion it made.

Ground 8

1. The Tribunal erred in concluding that, including but not limited to: 1. The Applicant was required to comply with a requirement or condition. 2. The PLSP was an 'agreed commitment by the parties' or a 'binding agreement' when the weight of the evidence did not support such a finding. 3. The Respondent failed to provide the adjustments in the PLSP; 4. If there was failure to provide adjustments, that minor failures in the implementation of the PLSP constituted indirect discrimination pursuant to s49B(1)(b) of the AD Act. 5. Not pressed.
2. In respect of Ground 8(a), the Department says it was erroneous for the Tribunal to have determined that there was any requirement imposed upon the son to achieve certain learning outcomes - the PLSP only set out ambitions or goals and did not set out requirements for the son's continued tuition at the school.
3. In respect of Ground 8(b), the Department says there is nothing on the face of the PLSP or the evidentiary matrix which supported the notion that they were legally enforceable contracts. The objectives were goals only and no intention to create legally enforceable obligations could properly be inferred. In addition the PLSP could not stand as a binding contract due to the vague and uncertain nature of the terms. In any event, even if it was a binding agreement, it was not the task of the Tribunal to consider this question, nor did it have any jurisdiction under the AD Act or otherwise to enforce its terms.
4. In respect of Ground 8(c), the Department says the mother failed to discharge the onus of proof on the question of whether the PLSP was adhered to by the school and teachers. It was not for the Department to disprove that the PLSP was not reasonably implemented and, in any event, the evidence of the teachers was consistent with it having been implemented as closely as was possible in all the circumstances, including the son's voluntary absences from class due to clinical appointments.
5. In respect of Ground 8(d), the Department says if there was partial unfulfillment of the PLSP in any respect, it was either insignificant or reasonable in the context of the various obligations and responsibilities of the son, the school and the teachers.
6. The mother says the evidence of the Department was given due consideration by the Tribunal.
7. One of the elements of establishing discrimination on the ground of disability under s49B(1)(b) is compliance with a requirement or condition. In that context the Tribunal looked at the authorities which, it determined, (at paras 93 to 98) imported ''the notion of compulsion or obligation'' and which could be "impliedly imposed, through conduct". In this case, it held, the relevant requirement was that the son learn without the supports and adjustments that had been agreed with his parents. It relied on the decision 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.
8. This last decision relates to use of the word "detriment" in s49L of the AD Act and not "requirement or condition" under s49B(1)(b) of that Act.
9. We consider that the Decision of the Tribunal does not disclose any legal reasoning for the Tribunal concluding that the PLSP was a 'binding agreement', other than the fact that the contents were agreed on at a meeting. It is simply expressed as a conclusion.
10. We do not consider that the language used in the document suggests a binding enforceable agreement. It refers to goals and strategies to achieve those goals. Further, it was not suggested that there was any oral agreement to that effect.
11. We note that in Shaw v Secretary, Department of Education [2023] NSWCATAD 102 , the Tribunal, in considering a PLSP document noted at [23]: 23. In respect of s 49B(1)(b) of the Act, the phrase "to comply with a requirement or condition" imports the notion of compulsion or obligation (see Walker v Victoria [2011) FCA 258 [189) to [194) per Tracey J). In addition, the requirement or condition must be explicitly imposed, or implicit in the conduct which is said to be discriminatory (see Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 at 360 per Mason CJ and Gaudron J 393 per Dawson and Toohey JJ and at 407 per McHugh J).
12. The Tribunal then held at [97]: 97. An examination of the PLSPs for the students, the terminology, adjustments and goals lead us to conclude and find that they do not constitute requirements or conditions, importing the notion of compulsion or obligation on the students to meet or, if they failed to meet those goals, there would be any consequences taken against them. For example, a goal of achieving an outcome at the end of a particular term is in our view, something to strive for or reach as a positive outcome, if possible, with the plans identifying the assistance to be provided to the student by, primarily, the class teacher and also with the assistance, where appropriate, of the SLSO.
13. We are again satisfied that the Tribunal has not set out the reasoning process which led to the conclusion it made.

Ground 10

1. The Tribunal fell into jurisdictional error at para 134 of the Decision in that it had no power to make any orders or purported orders pursuant to section 108(2) of the AD Act in the circumstances where it had made no order pursuant to section 108(1)(b) of the AD Act finding the Complaint substantiated in whole or in part.
2. The Department says the Tribunal had no jurisdiction to make the Orders pursuant to s 108(2) of the AD Act where it had failed to make a finding under s 108(1)(b).
3. The mother says that it is clear that the Tribunal found the Complaint substantiated in whole or in part under s 108(1)(b), so that the Orders pursuant to s 108(2) did not constitute jurisdictional error.
4. The structure of the legislation is clear. Section 108(1) says the Tribunal may either dismiss the Complaint in whole or in part, or find the Complaint substantiated in whole or in part. Section 108(2) then provides that, if the Tribunal finds the Complaint substantiated in whole or in part, it may make remedial Orders.
5. The Tribunal did not make any express finding in relation to any of the Complaints. Accordingly it did not expressly find any Complaint substantiated in whole or in part. It did however make remedial Orders.
6. The issue of whether the Tribunal impliedly found any Complaint substantiated or made sufficient findings otherwise for us to conclude that a finding that a Complaint is substantiated in whole or in part could be made by us, is considered in Ground 11.

Ground 11

1. Further and/or in the alternative to ground 10 above, the Tribunal erred to the extent it made any implicit finding pursuant to s 108(1)(b) of the AD Act by: 1. Failing to make any finding in relation to an act of indirect discrimination, including the facts which support any finding of indirect discrimination, as required by section 49B(l)(b) of the AD Act; 2. Failing to make any finding in relation to a breach of section 49L(2) of the AD Act, including the facts which support any finding of such a breach; 3. Making the purported 'findings' of 'discrimination', including but not limited to at paragraphs 116, 119, 122 and 124, which do not meet the requirements of sections 49B{l)(b) or 49L(2) and therefore could not support any ultimate finding pursuant to section 108(1)(b) of the AD Act.
2. In relation to Ground 11, the Department says none of the Complaints articulated a complete cause of action. It relied on the decision in ZOB v The University of Newcastle [2017] NSWCATAP 70, where the Appeal Panel stated at [213]- [214]: 213. If there is no discrimination on the ground of disability falling within the descriptions in s 49B, it does not matter whether the conduct occurred in one or more of the circumstances set out in Divs 2 and 3 of that Part, ss 490 - 490. 214. Consequently, since the Tribunal found that the relevant conduct did not amount to discrimination on the ground of disability within s 49B, it could not be unlawful discrimination under any of the provisions of Divs 2 and 3 of Pt 4 of the AD Act. Thus, it was unnecessary for the Tribunal to refer to or make findings concerning whether the conduct occurred in circumstances that would fall within s 49L(2)(a) or (c). Further, to the extent that the appellant did not or was not permitted to rely on these provisions at first instance, they should not be allowed to be raised on appeal.
3. The Department submitted that, as the mother had not included, in each Complaint, particulars of, firstly, the asserted breaches of s 49B(1)(b) and, secondly, the asserted breach of s 49L(2)(a) or (c), the whole of the Complaint ought to have been dismissed as incompetent on its face.
4. We do not accept this submission. As we have said, the mother is not legally represented. The mother asserts, and we accept for the purpose of this Appeal, that the Complaint is to be read as a whole, so that the mother claims that the conduct in Complaints 2, 3, 4 and 5 is discrimination on the grounds of disability (as defined in s 49B(1)(b)) by an educational authority as set out in Complaints 6 and 7 (as defined in s 49L).
5. The Department then submits that there was no proper analysis or application of ss 49L(2)(a) or (c) of the AD Act, read with the definition of unlawful indirect discrimination in s 49B(1)(b). Had that analysis and application not miscarried, the Tribunal would have reasonably had to have determined that there was no indirect discrimination on the grounds of disability for the primary but not exclusive reason that there was neither a relevant requirement, nor proof of any detriment related to the imposition of any such requirement.
6. The mother says the facts support the Tribunal decision that discrimination meeting the requirements of s 49B(1)(b) occurred. If one of the reasons the son suffered a detriment was discrimination on the ground of his disabilities, then the claim was established by reason of the definition of discrimination in the AD Act (s 4A). The Tribunal did find under s 49L(2)(a) and (c) that the Department had denied or limited the son's access to a benefit and subjected him to a detriment being the full implementation of the PLSP.
7. However, we are unable to conclude that the supportable findings of the Tribunal establish such discrimination. In particular: 1. We have found that the basis on which the Tribunal found that the SLSO did not work with the son to the extent set out in the PLSP was not explained in the Tribunal's decision (Ground 5). We are unable to determine from the submissions of the parties and the evidence we were taken to, whether the finding was open to the Tribunal. 2. We have found that the Tribunal did not give reasons for finding that there was a causal connection between the son not achieving the learning outcomes that were listed in the PLSP and the change in the employment of the SLSO (Ground 6). 3. We have found the Tribunal did not give reasons for concluding that the PLSP was an 'agreed commitment by the parties' or a 'binding agreement' (Ground 8). We are unable to conclude from the language used in the document or the submissions of the parties that the Tribunal's finding was open to the Tribunal. 4. As we have said, the structure of the legislation means that the Department's conduct under s 49B(1)(b) has to deny the son access, or limit his access, to any benefit provided by the Department (s 49L(2)(a)) or subject him to any other detriment (s 49L(2)(c)). There is no part of the Decision which enables us to determine with any certainty, in relation to each one of Complaints 2 - 5, whether the Tribunal found it is discrimination by reason of s 49L(2)(a) or s 49L(2)(c). We cannot determine whether such a finding, in relation to one or more of Complaints 2 to 5 would have been open to the Tribunal. 5. In Shaw v Secretary, Department of Education [2023] NSWCATAD 102, the Tribunal held at [17]: 17. There are thus four elements to s 49B(1)(b). That the Respondent required that the students had to comply with a "requirement or condition". If so, was the requirement or condition one with which a substantial higher proportion of persons without the identified disability complied or were able to comply? Then, was the requirement or condition reasonable. Finally, was the person with the disability able to comply with the requirement or condition. We agree with this analysis of the section and do not consider that there is sufficient reasoning disclosed in the decision of the Tribunal for us to find that the conclusion reached by the Tribunal was correct even if the reasoning was erroneous. 1. We accept the submission made by the Department that it is difficult to apply the facts determined by the Tribunal to s 49L(2)(a), in particular there is no finding of a relevant benefit that the son was denied or had limited access to, which the Department provided to the general student body.
8. For these Reasons we are not satisfied that the Tribunal made sufficient findings in respect of the necessary elements of the claim of disability discrimination to be in a position to find, or for us to find, that the Complaint was substantiated in whole or in part, a finding which was necessary to make to make the remedial Orders.
9. We are satisfied that this failure is a jurisdictional error. Jurisdictional error was described by the High Court in Hossain v Minister for Immigration [2018] HCA 34 at [24] as: …an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it.
10. We find that the Tribunal fell into jurisdictional error in making the remedial Orders.

Ground 12

1. The Tribunal erred at para 57 of the Decision in finding that the Respondent had not met his 'learning goals' in the subjects of science, history and geography, such a finding being either: 1. Unsupported by any evidence; or, 2. Against the weight of the evidence.
2. Ground 12(a) raises a question of law but leave to appeal would be required to pursue Ground 12(b).
3. The Department says that no evidence rising beyond a bare assertion from the bar table, was presented to support the Tribunal's finding that the son suffered a decline in learning outcomes in the relevant period in science, history and geography. It questions the reasoning of the Tribunal where it stated: 57 In relation to the questions regarding how Patrick's school report could show outcomes in science, history and geography to the effect that learning goals have been achieved in science, history and geography, the Department states that this assessment is "based on his teacher's observations during class ''brainstorming'' activities, discussion with his classmates and collaborative research projects". If he was missing work through attendance with therapists and no homework was being sent home for him to catch up on, we do not accept that he met the learning goals for those subjects.
4. However, there was evidence before the Tribunal from the school explaining that the son regularly missed lessons in science, history, and geography throughout the year while at therapy sessions.
5. The mother said it had been agreed in the PLSP that the son would attend therapy sessions during school hours, and the work he missed would be sent home to be completed. However when this happened, no work was sent home. The Tribunal accepted this evidence (para 57).
6. We understand from the reasons of the Tribunal that the Department did not assert that the son had met those outcomes but rather that the notes were not as comprehensive as for other students, given the limited opportunity to assess him because he had been absent (para 58).
7. We accept that it was open to the Tribunal to conclude that the learning outcomes could not have been achieved.
8. We are not persuaded that the Tribunal made an error of law in respect of the issue raised in Ground 12(a).
9. In respect of Ground 12(b), we refer to our discussion below as to the relevant principles on the grant of leave to appeal. In view of our conclusion that the relevant finding was open on all of the evidence, we decline to grant leave to appeal in respect of Ground 12(b).

Ground 13

1. The Tribunal erred at paragraphs 99, 100 and 115 of the Decision by taking into account the irrelevant consideration of whether the 'IEP/PLSP agreements' constituted binding agreements and thereby misdirected itself from its task of determining whether there had been unlawful indirect discrimination in breach of the AD Act.

Ground 14

1. The Tribunal erred at paragraphs 110, 112 to 114 and 116 to 119 of the Decision by taking into account the irrelevant consideration of whether the 'IEP/PLSP agreements' were adhered to and thereby misdirected itself from its task of determining whether there had been unlawful indirect discrimination contrary to the AD Act.
2. The Department concedes that these overlap with other Grounds.

Leave to appeal

1. Some of our findings are errors of law made by the Tribunal. These are the lack of procedural fairness in relation to the making of Order 4 (Ground 4) and jurisdictional error (Grounds 10 and 11).
2. As we have already said, to succeed in an appeal, the Department must demonstrate either an error on a question of law, or obtain leave to appeal on other grounds (NCAT Act s 80(2)).
3. We have made some findings as to the Tribunal having failed to give reasons or adequate reasons in relation to some issues (Grounds 5, 6 and 8). Whether this is a question of law has not yet been definitively decided (NSW Land and Housing Corporation v Orr [2019] NSWCA 231 at [110]).
4. The question then arises whether we should grant leave to the Department to appeal in relation to these issues if they are not questions of law. In Collins v Urban [2014] NSWCATAP 17 at [84] the Appeal Panel held: 1. In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 2, Ordinarily it is appropriate to grant leave to appeal only in matters that involve: a. issues of principle; b. questions of public importance or matters of administration or policy which might have general application; or c. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; d. a factual error that was unreasonably arrived at and clearly mistaken; or e. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed
5. We grant leave as the issues raised by Grounds 5, 6 and 8 of the Appeal were not peripheral to the decision of the Tribunal but central to the issues to be determined. It is, we are satisfied, in the interests of justice that they be reviewed.

The consequences of our findings

1. Even where an error on a question of law has been identified, the Appeal Panel retains discretion as to whether to allow the appeal or disturb the decision at first instance (Sydney RV Group Pty Ltd v Mark Anthony Vallender [2021] NSWCATAP 125, at [85]-[92]).
2. However we have found that the Tribunal did not have the jurisdiction to make the four remedial Orders. We have also declined to find that the Orders appealed from were correct, even though the reasons were erroneous.
3. Counsel for the Department asked for the Complaint to be dismissed in whole, or, in the alternative that the Complaint be remitted to the Tribunal, differently constituted, for hearing in accordance with law.
4. We decline to dismiss the Complaint.
5. We will order that the Complaint be remitted to the Tribunal for rehearing.
6. We decline to order that the Tribunal be differently constituted, noting that such an order should only be made for good reason: Minister for Immigration and Multicultural Affairs v Wang [2003] 215 CLR 518; [2003] HCA 11 per Gleeson CJ at 525-6, McHugh J at 533, Gummow and Hayne JJ at 541-2, Kirby J at 566; Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 per Mason P, with whom Ipp JA agreed, at [12]-[15]. No such reason was put to us.

Orders 1. Grant leave to amend Notice of Appeal. 2. Grant leave to the Appellant to appeal pursuant to s 80(2)(b) of the NCAT Act. 3. The Orders made by the Tribunal are set aside. 4. The Complaint is remitted to the Tribunal for re-hearing.

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 19 June 2023 - anonymisation update. 03 November 2023 - Coversheet - Representation - Counsel added, for Appellant. 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: 03 November 2023