Student’s Disability Discrimination Claim Fails
Published on June 9, 2021 by David Ford and Stephanie McLuckie
Beau was a student at a Queensland state school from January 2011 to August 2015. He had a number of disorders, including autism spectrum disorder, attention deficit hyperactivity disorder, oppositional defiance disorder, depression and anxiety.
Beau was frequently disruptive, sometimes physically assaulting teachers and other students. When this happened, staff physically restrained Beau and confined him in a room. He was frequently suspended from school.
Beau sued the State of Queensland (Department of Education and Training), alleging unlawful disability discrimination in the provision of education, in contravention of section 5 and section 22 of the Disability Discrimination Act 1992 (Cth) (the DDA).
The definition of disability in the DDA is broad and includes a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour, including behaviour that is a symptom or manifestation of the disability. It was accepted that Beau had a disability and that his disruptive behaviour at the school was as a result of his disability.
Section 5 of the DDA provides:
- For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
- For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
- the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
- the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
- For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
Beau alleged that the school had discriminated against him on the grounds that:
- The school had both formally and informally suspended Beau on multiple occasions and, by doing so, the State had discriminated against Beau by treating him less favorably than a student without Beau’s disability would have been treated in a government school.
- Beau was subjected to physical restraint/violence and seclusion/isolation at the school on the basis of his disability, inconsistent with the school’s policies for the treatment of students. Such treatment by the State was alleged to be discrimination against Beau by treating him less favorably than a student without Beau’s disability would have been treated.
- The State failed to provide Beau with a Functional Behaviour Assessment or a Behaviour Plan, which was required to mitigate Beau’s disruptive behaviours and this failure had the effect that Beau was, because of his disabilities, treated less favourably than a student without his disabilities would have been.
The Appropriate Comparator
Disability discrimination under sections 5(1) and 5(2) of the DDA requires a comparison between how the person with the disability was treated and how a person without the disability would be treated in circumstances that are not materially different. This involves identifying the appropriate ‘comparator’ to Beau.
Beau argued that he was excluded from the school (and physically restrained and/or placed in isolation in the withdrawal room) because of his disturbed behaviour which was caused by his disability and a student without his disability would not have engaged in these behaviours and would not have been excluded or restrained.
The Court disagreed, saying that the appropriate approach was to compare the treatment accorded to Beau with the way a student without his disability (but engaging in disruptive behaviours) would have been treated.
Ultimately, the Court found that Beau’s suspensions and the restraints were because of his behaviour and concluded that a student without Beau’s disability engaging in similar behaviour would also have been similarly suspended or restrained. Accordingly, Beau was not treated less favourably than a student without his disability would have been treated in the same circumstances.
Reasonable Adjustments
Beau also argued that the school had failed to provide him with a reasonable adjustment; namely, an adequate or suitable Functional Behaviour Assessment and Behaviour Plan.
The Court found that the State did not fail to provide the Functional Behaviour Assessment and Behaviour Plan. Further, for the purposes of s 5(2) of the DDA, it is necessary to show that the failure to provide reasonable adjustments had the effect that Beau was, because of his disabilities, treated less favourably than persons without those disabilities would be treated in circumstances that are not materially different.
Where there are deficiencies in the reasonable adjustments (in this case, the Assessment and Behaviour Plans) caused by errors of judgment or inadequacy of resources or other causes unrelated to disability, then this is not treatment that is less favourable. In this case, the Court found that any deficiencies in the Plans did not occur because of Beau’s disabilities.
Disability Standards for Education 2005
The Judge also considered that the Disability Standards for Education 2005 applied to the School and considered that clause 5.2(1) required a school to take reasonable steps to ensure that a student is able to participate in the courses or programs provided and use the facilities and services on the same basis as a student without a disability, and without experiencing discrimination.
Ultimately, the Court found that in providing the reasonable adjustments to Beau, the School had complied with the Standards and accordingly had not contravened the Standards.
Conclusion
It is widely accepted that Australians with a disability, including students with a disability, experience high levels of discrimination in all areas of life, including education. However, Beau’s case should give some comfort to schools educating students with disabilities that the Court will take into account the realities of dealing with disruptive behaviours in the classroom and the necessity of removing or restraining a student when it is in the best interests of the student concerned, as well as other students and staff.
Additionally, it is a relief to see that when making reasonable adjustments for students with disabilities, a simple error or omission in the adjustment itself (for instance, on account of inadequacy of resources) is not likely to result in a successful claim for disability discrimination.
If you would like assistance with issues relating to disability discrimination, please contact David Ford or Stephanie McLuckie.
