Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EKZ v Active Kids Group Pty Ltd [2020] NSWCATAD 20 Hearing dates: 3 June 2020 Date of orders: 26 August 2020 Decision date: 26 August 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: A Britton, Principal Member E Hayes, General Member Decision: (1) The complaint of discrimination on the grounds of disability is dismissed. Catchwords: EQUAL OPPORTUNITY — direct discrimination — determination of less favourable treatment EQUAL OPPORTUNITY — distinction between direct and indirect discrimination Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Disability Discrimination Act 1992 (Cth) Cases Cited: Catholic Education Office v Clarke (2004) 138 FCR 121; [2004] FCAFC 197 Hurst v Queensland (2006) 151 FCR 562; [2006] FCAFC 100 Purvis v New South Wales (Department of Education and Training) (2013) 217 CLR 92; [2003] HCA 62 Waters v Public Transport Corporation (1992) 173 CLR 349; [1991] HCA 49 Texts Cited: None cited Category: Principal judgment Parties: EKZ and ELA (Applicants) Active Kids Group Pty Ltd (Respondent) Representation: In person (Applicants) Penhall & Co Lawyers (Respondent) File Number(s): 2019/00400927 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, publication of the name of the Applicants, EKZ and ELA and their son, ELB is prohibited. REASONS FOR DECISION 1. Four-year-old ELB has epilepsy and developmental delay. In August 2019, his parents EKZ and ELA (the Applicants in these proceedings) enrolled ELB and his younger brother, at Vaucluse Cottage Child Care Centre, operated by Active Kids Group Pty Ltd (Active Kids). On 10 September 2019, two days before the brothers were to commence at Vaucluse Cottage, Active Kids notified the Applicants that their application to enrol ELB had been revoked because of "his needs". 2. Three weeks later the Applicants lodged a complaint with the President of the Anti-Discrimination Board on behalf of their son, alleging that Active Kids had discriminated against ELB on the ground of disability in contravention of the Anti-Discrimination Act 1977 (NSW). 3. For the reasons that follow, we find the complaint of discrimination on the ground of disability as formulated by the Applicants, is not substantiated. Publication of names 1. We decided to exercise the power conferred by s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) to make an order prohibiting the disclosure of the name of the applicants, EKZ and ELA and their son. In making that decision, we formed the opinion that despite the presumption of open justice, given his age and the nature of his disability, it would not be in ELB's interests for his identity to be disclosed. As the publication of the names of the Applicants would identify ELB, we also decided to prohibit the disclosure of their names. Neither party objected to that decision. 2. For ease of reading, in these reasons we will refer to "ELB" as "the Son", ELBs younger brother as "the Brother", ELA and EKZ, respectively, as "the Mother" and "the Father" and collectively "the Applicants". Background facts 1. On 1 August 2019, the Applicants visited Vaucluse Cottage to consider whether to enrol their sons at the Vaucluse Cottage Child Care Centre. On 8 August 2019 they submitted enrolment forms for each son, attaching a report about the Son that was prepared by health practitioners with the Tumbatin Clinic at Sydney Children's Hospital and was dated 7 August 2018. The Clinic provides assessment and diagnosis services for children with suspected delays or disorders in development. The report noted: "[The Son] continues to present with a significant global developmental delay. Overall he is estimated to be functioning [at] 18-22 month level. [The Son was 37 months of age at the time of the assessment.] He presents with significant delays in his language, fine motor and personal/social/emotional skills. [The Son]'s gross motor skills are better developed comparatively." 1. The following day, the Applicants paid Active Kids a deposit to secure placement for their sons, with a 13 September 2019 start date. 2. By email sent on 16 August 2019 to Ms Courtney Cotter, Active Kids' Family Relation Consultant, as requested, the Mother returned signed copies of childcare agreements issued by Active Kids, in respect of each son. In that email, the Mother informed Ms Cootter that she had talked to "the lady from the inclusion agency who had been looking after [the Son]'s case for the last 18 months, and she has offered to talk to you in case you need additional guidance". Ms Cotter replied that she would pass that information onto Vaucluse Cottage Director, Marisa Galati. 3. According to the Mother, since her first meeting with staff on 1 August 2019, she has been "completely transparent" about the Son's conditions. She has not only responded to requests for information but has been "proactive" and provided additional information, including information to assist Active Kids to apply for funding for an "Inclusion Support Worker" to support the Son. The Commonwealth government offers eligible childcare and early learning services funding (the Inclusion Support Subsidy) to support the inclusion of children with high support needs. The Son attended My Stepping Stones Rose Bay, prior to his enrolment at Vaucluse Cottage. At My Stepping Stones, the Son was supported by a dedicated inclusion support worker, initially for four and a half hours per day and from December 2018, six hours per day. Apparently, My Stepping Stones received the Inclusion Support Subsidy to pay that worker. 4. On 29 August 2019, the Mother met with Vaucluse Cottage Director, Marisa Galati, to discuss the Son's enrolment. At that meeting, the Mother gave Ms Galati the Seizure Management Plan used by My Stepping Stones. That Plan detailed the steps to be taken if the Son experienced a seizure, which included administering medication and calling an ambulance. The Plan also provided contact details for his GP and treating neurologist. 5. In addition, at the meeting on 29 August 2019, the Mother discussed the therapy the Son had been receiving from speech pathologist Debra-Ann Tane, since July 2017. The following day, the Mother sent Ms Galati a report prepared by Ms Tane dated 27 January 2019. In that report, Ms Tane listed the Son's "current challenges", including visual perception and social skills. Ms Tane wrote "communication is essential for [the Son] to be included in social and academic sessions" and recommended that he continue with intensive therapy sessions to "support the significant goals that [the Son] has made to date". 6. On 2 September 2019, the Mother provided Vaucluse Cottage with a second Seizure Management Plan. 7. On 30 August and 2 September 2019, the Son and the Brother attended Vaucluse Cottage for one-hour orientation sessions. 8. On 10 September 2019, Ms Galati left a voice message for the Mother advising that the Son's enrolment had been revoked because of "his needs". In an email sent on the same day confirming that advice, Ms Galati wrote: "Children's care is of our highest priority and after preparing for [the Son]'s first day, we are unable to accommodate his needs. Unfortunately, we cannot provide the assistance that [the Son] requires to support his future development." 1. The following day the Mother contacted Ms Galati and Ms Cotter seeking an explanation for that decision. She was most distressed as her family was away, the placement was about to start, and she did not have alternative child care. On her account she was told that Vaucluse Cottage could not accommodate the Son and the decision had come "from higher management after a review, and they could not accept him because of his needs". The Mother claims that Ms Galati assured her that the decision had nothing to do with his behaviour at the orientation sessions. 2. In a statement dated 23 March 2020, Mr Kareem Diskoros, the CEO of Active Kids, stated that he made the decision to revoke the Son's enrolment because of his "special needs and the absence of a reasonable opportunity to meet those needs". Describing as "unfortunate" the short notice the Applicants were given of that decision, Mr Diskoros claimed that because of "staffing issues" there was a delay in the relevant material being provided to him for review. He claimed that the purpose of the orientation sessions attended by the Son was to give his parents and Active Kids the opportunity to determine whether a "placement is likely to deal with special needs … and an opportunity for either side to withdraw". He described the enrolment up to that point as "paper driven". 3. Mr Diskoros stated that in making the decision to cancel the Son's enrolment, he took the following considerations into account: 1. Vaucluse Cottage's 1:10 teacher: student ratio; 2. his opinion that an early childcare worker/teacher responsible for nine very young children would not be able to deal simultaneously with an "epileptic emergency"; 3. at the time he made that decision, Active Kids did not have any staff available to provide additional assist to the Son; 4. he understood that the government funding available for inclusion support workers was capped at six hours per day, and it could take several months to obtain funding approval and recruit a suitable worker; and 5. his understanding that the Applicants were seeking 11 hours care for the Son each day, that is, for the entirety of Vaucluse Cottage's opening hours, 7:00 to 18:00. 1. Mr Diskoros stated that had Active Kids been required to meet the costs of an inclusion support worker it would have amounted to an "unreasonable financial hardship". 2. In cross-examination, Mr Diskoros conceded that in considering the Son's enrolment he had made no enquiries of the relevant funding agency, nor had he taken any steps to investigate whether it would be possible to recruit an inclusion support worker at short notice. In addition, Mr Diskoros admitted that he did not explore with the Applicants how many hours of care they required each day; whether they would be prepared to consider enrolling the Son for a maximum of six hours per day; or, whether they would be prepared to consider delaying his commencement at the Centre. The Mother stated that it was never intended that the Son would attend the Centre for 11 hours each day. 3. An issue in dispute between the parties is whether, and if so when, the Mother told Vaucluse Cottage about the Son having suffered a seizure and being transported to hospital by ambulance, while attending My Stepping Stones. Apparently, My Stepping Stones asked the Applicants to find an alternative placement for him after that seizure, as staff found the experience distressing. In a chronology prepared by the Mother (Exhibit A2) she stated that she informed Ms Galati of that seizure at the meeting on 29 August 2019. No evidence was called to contradict that claim. In oral evidence, the Mother stated that while she was not "100 per cent sure", she was pretty confident that she informed Vaucluse Cottage staff about that seizure at the first meeting on 1 August 2019. We find the Mother informed Vaucluse Cottage of the seizure. Statutory framework 1. Section 49M of the Anti-Discrimination Act makes it unlawful for a person who provides services to discriminate against a person on the ground of disability: 49M Provision of goods and services (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability— (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services. 1. Section 49B explains what constitutes "discrimination on the ground of disability": 49B What constitutes discrimination on the ground of disability (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator-- (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. … (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability. 1. Section 4 defines "disability" as: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. 1. Section 49A expands the definition of disability to include a disability that a person has, is thought to have (whether or not the person in fact has the disability), had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability). 2. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Anti-Discrimination Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Anti-Discrimination Act. The issues 1. It is agreed that the Son has epilepsy and is developmentally delayed and that those conditions individually and collectively amount to a "disability" within the meaning of the Anti-Discrimination Act. In addition, it is agreed that Active Kids refused to provide him with childcare services: s 49M(1)(a). 2. The Applicants characterised their complaint as direct discrimination under s 49B(1)(a) of the Anti-Discrimination Act. To establish that complaint the Applicants must establish on the balance of probabilities that: 1. in refusing to provide the Son with childcare services, Active Kids treated him less favourably than it treated, or would have treated, a child without his disability, in the same circumstances or circumstances that were not materially different (less favourable treatment), and 2. one of the reasons for any less favourable treatment was the Son's disability (causation). Are less favourable treatment and causation established? 1. Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2013) 217 CLR 92 (Purvis) concerned a student who been excluded from school because of occasional violent behaviour which was the manifestation of a long standing brain injury. By majority (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; McHugh and Kirby JJ dissenting), the High Court held that the exclusion of the student did not amount to direct discrimination under s 5 of the Disability Discrimination Act 1992 (Cth) (the equivalent but not identical provision to s 49B(1)(a) of the Anti-Discrimination Act), since the educational authority would probably have treated a non-disabled student exhibiting the same behaviour in the same way. Commenting on the element of causation, Gummow, Hayne and Heydon JJ said that the "central question will always be" (at 163): "[W]hy was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'." 1. McHugh and Kirby JJ put the question to be asked in this way (at 142, 143): "[W]hile it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind." 1. We find that the Son's disability was one of the reasons Active Kids refused to provide him with childcare services. It is not to the point, as Active Kids appears to claim, that the decision was not motivated by malice but rather financial considerations and/or concerns for the Son's welfare or that of other children. To establish causation in a claim of direct discrimination on the ground of disability, it is enough that "disability" was at least one of the "real", "genuine" or "true" reasons for any less favourable treatment: see Purvis at [13], [14], [166] and s 4A of the Anti-Discrimination Act. 2. The real issue raised by this case is whether less favourable treatment is established. To answer that question, it is necessary to: 1. compare the treatment Active Kids afforded the Son (the refusal to provide childcare services) with the treatment that: 1. Active Kids afforded a child without the Son's disability, in the same circumstances or circumstances that are not materially different to the Son's circumstances (an actual child), or 2. Active Kids would probably have afforded a child without the Son's disability in the same circumstances, or circumstances that are not materially different to the Son's circumstances (a hypothetical child), and 1. evaluate whether the treatment afforded to the Son was objectively less favourable than the treatment Active Kids afforded an actual child, or would probably have afforded a hypothetical child. 1. As Gummow, Hayne and Heydon JJ explained in Purvis at 160, 161, in undertaking that comparison, as a first step it is necessary to identify all of the objective features surrounding the treatment Active Kids' afforded the Son, including those connected to his disability: "In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) [Disability Discrimination Act 1992 (Cth)] requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled.... The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability..." 1. The Mother nominates the Brother, who does not have the Son's disability, as an actual comparator. Self-evidently, the treatment Active Kids afforded the Son was objectively less favourable than the treatment it afforded the Brother. The Brother's enrolment was accepted. Active Kids did not refuse the Brother childcare services. But is he an appropriate comparator? In our view, he is not because his circumstances were materially different to those surrounding the Son. To participate in class and other activities offered by Active Kids, the Son required significant additional assistance and support. The Brother did not. 2. Without an actual comparator the treatment afforded the Son must be compared with the treatment Active Kids would probably afford a hypothetical child without the Son's disability in circumstances which are not materially different. As discussed above, those circumstances would include the additional assistance the Son required to be able to participate in class and other activities. We think it more likely than not that confronted with an application for enrolment of a hypothetical child who did not have the Son's disability or a disability that is substantially the same as that disability, but like the Son, required significant additional care and assistance, Active Kids would probably refuse to provide that child with childcare services. In short, Active Kids would probably treat the hypothetical child in the same way as it treated the Son. We are not satisfied that the treatment afforded the Son amounts to less favourable treatment. 3. Cast as a complaint of direct discrimination the complaint is not substantiated. Indirect discrimination 1. At a case conference on 15 January 2020, the Tribunal discussed with the parties the elements that need to be established in claims of direct (s 49B(1)(a)) and indirect discrimination (s 49B(1)(b)). Given that the Applicants decided to characterise the complaint as one of direct discrimination, it would not be appropriate to proceed to consider, or to express a view on, whether the complaint could be substantiated if cast as indirect discrimination. 2. Nonetheless, our decision should not be taken as authority for the proposition that where a provider of childcare services refuses to provide services to a child with a disability on the ground of that disability, that will not amount to unlawful discrimination under the Anti-Discrimination Act. Conduct found not to amount to direct discrimination might amount to indirect discrimination and vice versa. The difference between these two types of discrimination was explained by Dawson and Toohey JJ in Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349 at 392: "A distinction is often drawn between two forms of discrimination, namely "direct" or "disparate treatment" discrimination and "indirect" or "adverse impact" discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such "equal" treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers: Griggs v. Duke Power Co. [1971] USSC 46; (1971) 401 US 424. Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable." 1. Whether a decision to refuse to provide childcare services to a child with a disability will amount to unlawful discrimination will turn on the facts of the particular case. We note however that in a number of cases in the area of education it has been found that requiring a student with a disability to participate in class without additional assistance amounted to unlawful discrimination on the ground of disability, see for example, Hurst v Queensland [2006] FCAFC 100; (2006) 151 FCR 562 and Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121. Orders 1. The complaint of discrimination on the grounds of disability is dismissed. Addendum The version of the reasons for decision provided to the parties on 26 August 2020, referred to the Applicants and the Son by name, not by pseudonyms. ********** 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 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: 25 September 2020