Ben Foley, Special Counsel, Education, and Workplace is a rare gem in his industry, bringing not only a strong legal background but 10 years of Executive experience at a top-notch Queensland GPS school. Ben’s ‘hands-on’ experience within the education sector means that he has a deep understanding of the issues that can arise between schools, families, and other key stakeholders, and of course, how they should be managed.
When it comes to diversity, we’ve seen a positive change over the past 20 years — especially in school enrolment applications. Visit any school website and you’re likely to see that many openly advocate their support and inclusion for all students. Now, more than ever before, schools are going to great lengths to accommodate a variety of students, including those with special needs.
At the end of 2020, the Disability Royal Commission released an Interim Report, which delved into an array of topics, but of special interest for the education sector was its section on ‘gatekeeping practices.’ These practices are when a school informally discourages a student with a disability from enrolling, under the advice that the student might be ‘more suited to another school’ that’s better able to cater to the student's special needs.
In the majority of cases, gatekeeping practices would be unlawful, as schools fail to meet their obligations to sufficiently determine what ‘reasonable adjustments’ can be made to meet the student’s needs. In short, gatekeeping practices place a school at a greater risk of discrimination complaints. Below, we’ll take a look at the current disability standards for education, the expectation for schools to consult and make ‘reasonable adjustments,’ and what it means to claim ‘unjustifiable hardship’ to meet these requirements.
The Disability Standards for Education 2005 (Standards) are designed to ensure that all students with a disability are able to access and participate in education on the same basis as others. This applies to:
Under the Standards, there are three main types of obligations that must be met. You're required to:
Prior to determining what reasonable adjustments a school should consider, your team must consult with the child’s family, which is best approached as a ‘team effort’. Taking this approach is not only the right thing to do but highlights your school’s support for children with special needs. During the consultation process, it’s essential to gather as much information as possible about the child’s needs so that your team is able to determine what reasonable adjustments are required. What reasonable adjustments are required depend on each particular circumstance however they could involve:
In some cases, determining reasonable adjustments might mean liaising with medical experts or other specialists and professionals who are able to provide valuable insight into the students’ needs. A quick word of caution: be careful of preconceived notions about a child’s special needs, always keep an open mind and seek clarification from the experts when in doubt.
In some unfortunate circumstances, making the required adjustments to accommodate a student with special needs may be too tricky for your school. In these situations, relevant discrimination laws allow a school to raise a defence to a discrimination claim known as ‘unjustifiable hardship’. That is, making the required changes may place your school in a position of hardship that’s ‘unjustifiable.’
The defence of unjustifiable hardship is an assessment of what is fair and reasonable in the circumstances and it is up to the person or entity (in this case, your school) to prove that you’ll be put to unjustifiable hardship by implementing the reasonable adjustments. In the past, Commissions have indicated that it is reasonable for schools to endure some hardship in accepting the enrolment of students with special needs. The Disability Discrimination Act 1992 (Cth) defines ‘unjustifiable hardship’ and makes it clear that “all relevant circumstances of the particular case must be taken into account”. Importantly for schools, part of these circumstances include:
So, if for example, a school has undergone some recent significant capital works projects such as the construction of a new Science Centre or Performing Arts Building or it can access some external funding to assist a student with a disability, then it may be very difficult to argue that making reasonable adjustments to accommodate the student would cause the school unjustifiable hardship.
When enrolling students with special needs, it’s essential that a school works with the family in a ‘team’ like approach. Despite the best intentions, this can be a tricky topic to navigate, so always feel confident in asking for external assistance if need be. In summary though, when enrolling students with special needs:
If you're interested in learning more about enrolling students with special needs to reach out to the team at Clifford Gouldson Lawyers for advice.