Disability Discrimination and Flexible Home Learning – FVN v Secretary, Department of Education [2023] NSWCATAP 301 (8 November 2023)
Fay (not her real name) is the mother of a boy who attended a NSW public primary school from February 2019 to July 2021. She has Type 1 diabetes and is immune-compromised. Between 22 March 2020 and 11 May 2020, parents in NSW were encouraged to keep their children home from school to contain the spread of COVID-19. During this period, the Secretary of the Department of Education assisted students to continue their education at home. The Department referred to this as ‘flexible’ home learning.
On 11 May 2020, the NSW Government declared that students would return to school on a staggered basis and subsequently on a full-time basis from 25 May 2020. Department Guidelines allowed students to continue to receive flexible home learning services if a household member was immune-compromised such as receiving chemotherapy with medical certificates in support.
On 20 May 2020, Fay sought permission to keep her son at home and to apply for flexible home learning services on account of her chronic immune-compromised condition. Subsequently, she produced two medical certificates to justify the request.
Initially, the school principal arranged for two weeks of flexible home learning services to be provided to Fay’s son. Subsequently, the school refused to provide flexible home learning services.
The Department took the attitude that the medical certificates supplied were inadequate and no flexible home learning services should be provided. Further, the Department threatened Fay with prosecution if her son was not returned to school. After 31 days of non-attendance, the boy returned to school.
Fay’s initial complaint to the NSW Civil and Administrative Tribunal was made on behalf of her son, alleging discrimination by the school against her son on the ground of disability under section 49L (the education section) of the Anti-Discrimination Act 1977 (NSW). Fay also complained in her own right alleging unlawful discrimination in contravention of section 49M (the goods and services section).
The Tribunal dismissed her complaint so she appealed.
Fay argued that the Department had discriminated unlawfully against her son by:
(a) denying him access to flexible home learning on the ground of her disability, being immune-compromised because of her diabetes;
(b) refusing to provide her son with flexible home learning services or by the terms on which the Department provided such services – she argued that the Department was providing education services not only to her son but also to her as a parent.
The Appeal Panel decided:
- The Department was wrong to say that it had to refuse to provide flexible home learning and to require the boy to attend school to comply with the requirements of the Education Act. To the contrary, it had a discretion to provide flexible home learning to this boy.
- The Department had denied the boy access to flexible home learning on the ground of his mother’s disability in contravention of section 49L. In doing so, it had treated the boy less favourably than it treated another child whose parent had a different disability to Fay (being immune-compromised because of chemotherapy to treat cancer as opposed to Fay being immune-compromised because of her diabetes).
- The language of s 49M and the definition of services, including that it need not be for the payment of a fee, is wide enough to encompass the provision of education services to a parent in respect of the education of the parents’ child by the Department, at least where the child is a minor.
Although Fay only received $15,000, this case is a reminder to all schools to tread carefully when dealing with students or their family members who have a disability.
The Appeal Tribunal made this apt observation:
We note that rarely in a case of unlawful discrimination will the real ‘grounds’ for a Respondent’s actions be revealed by the party’s own witnesses. The issue will more usually be a question of inference to be drawn from all of the evidence.
The point was illustrated by the school principal who, under cross examination, admitted agreeing to a request for home learning for a child whose parent was undergoing chemotherapy after receiving a letter from the parent’s medical specialist asking for home learning. In the next breath, the principal acknowledged that, despite similar letters from two of Fay’s doctors, she did not agree to Fay’s request. The principal’s inconsistency was a key factor in the Appeal Tribunal finding that the Department discriminated against the boy on the ground of Fay’s disability, she being an associate of her son, as the Department treated the boy less favourably than in circumstances which are not materially different to how the Department would treat a person, being a parent undergoing chemotherapy, who does not have Fay’s disability (within the meaning of s 49B(1)(b)).
Being cross examined is never fun. To help avoid the experience of this principal, it’s good to get advice before responding to requests about students with disabilities or from parents with a disability. If you are ever in that situation, contact David Ford or Stephanie McLuckie.