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WA taxpayers shelling out to settle children's claims of disability discrimination against schools
WA taxpayers are forking out thousands of dollars in settlement payments to students from schools accused of discriminating against children with disabilities.
The West Australian can reveal that in the past 18 months, the families of 11 students have received payouts to settle their disputes with public and private schools.
Figures supplied by the Sussex Street Community Law Service — one of WA's lead agencies for disability discrimination — show that schools paid out $158,830, an average of $14,439 each student, to settle their clients' claims in that time.
Sussex Street disability discrimination lawyer Golda Eshun said around half the complaints they investigated were from public schools.
Of the claims that came from private, faith-based schools, most were from Catholic or Baptist schools.
'In the past 18 months, in terms of the amount that has been paid, we've seen higher payouts than previous years, because of the seriousness of the allegations,' she said.
Sussex Street Principal Lawyer Joharna Wynaden said that in cases involving public schools, there was also a hefty cost to taxpayers for lawyers from the State Solicitor's Office to provide legal advice and negotiations.
'It's a not insignificant cost for the government, and makes it therefore surprising that there's not an eagerness to engage in other ways of communicating and resolving disputes,' she said. 'It's an unnecessary cost, because these matters should be capable of being resolved without legal action.'
Ms Wynaden said the service had seen a wide range of cases, some of them 'extreme', such as children locked in rooms by themselves.
'We've seen cases where children have been physically restrained by teachers or school staff, including from primary school age,' she said.
Ms Eshun said many of the children who had claims filed on their behalf had autism or ADHD. Most complaints alleged a failure to make reasonable adjustments for a child's disability, to make school more accessible for them.
'You're looking at strategies as simple as providing them with fidget toys in the classroom or brain breaks for when they are dysregulated,' she said. 'Or looking at differentiation in teaching.'
Ms Eshun said some teachers refused to allow fidget toys in a classroom because they believed it was unfair to other children who might want them.
Overloaded teachers were often not aware that a student had an individual education plan, or if they were aware, did not follow it.
'And we find that while on paper the plans are there, in reality, the schools don't provide the adjustments as detailed in the plan,' she said. 'So you have a child who is then dysregulated and then engages in the behaviours that are contrary to school policy, and then they get suspended or dismissed.'
Most claims were lodged with the Human Rights Commission, though some have gone to the Equal Opportunity Commission.
Last year, out of 179 complaints the HRC received about disability discrimination in education (including schools and universities), 34 came from WA, up from 32 the previous year.
An example of a disability claim detailed on the HRC website that resulted in a $30,000 settlement last year was a boy with autism, ADHD and anxiety who refused to go to school. His mother argued the school had failed to appropriately accommodate his disability.
Ms Wynaden said discrimination could have a huge impact on a child's life, often preventing them from attending school for several years.
That rupture to their education could lead to alcohol and drug abuse, or into the criminal justice system.
'So not having that kind of foundation for a person with disabilities has the potential for damage that's much more serious than for a person without a disability,' she said.
It could also cause significant hardship to a family, if one parent had to quit their job to home school.
'A family that's already disadvantaged because they have a child with disability that they're caring for, then gets plunged even further into disadvantage,' she said.
Ms Wynaden said there needed to be much clearer guidance for parents and for teachers about how to talk about disability and how to deal with a child with disabilities in the classroom.
Coping with rising numbers of children with complex needs in classrooms — particularly neurodivergent students — has become one of the biggest issues facing teachers and principals in WA schools.
A State Government review of the Education Act to identify ways to strengthen access and inclusion for students with disability was completed in December, but is yet to be released.
