Shaw v Secretary, Department of Education [2021] NSWCATAD 95

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shaw v Secretary, Department of Education [2021] NSWCATAD 95 Hearing dates: 15 March 2021 Date of orders: 19 April 2021 Decision date: 19 April 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: D Dinnen, Senior Member Decision: The complaint referred by the President of the Anti-Discrimination Board to the Tribunal on 21 July 2020 and to which leave was granted on specific terms by this Tribunal on 2 October 2020 is amended to incorporate the following complaints against the Respondent within the period 22 July 2019 to 18 December 2019: 1 The respondent discriminated against Patrick Shaw on the grounds of his disability contrary to section 49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, Patrick will use visual organisers, including concept maps, webs, diagrams, drawings to organise information concretely and visually. Writing to consist of 5 paragraphs, retelling a narrative/persuasive text from a short video or picture book, with limited support. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and Patrick's ability. 2 The respondent discriminated against Patrick Shaw on the grounds of his disability contrary to section 49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, Patrick to use correct formation and joins to complete weekly handwriting lessons and for him to work on handwriting conventions for simple writing tasks (eg Short answers, writing spelling words or copying what a scribe has written so it is in his own writing) in a 6mm ruled workbook. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and Patrick's ability. 3 The respondent discriminated against Patrick Shaw on the grounds of his disability contrary to section 49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, Patrick to participate in at least two 20 minute gross motor structured play sessions, with 2-4 peers, each week, organised in conjunction with the SLSO and supervised. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and Patrick's ability. 4 The respondent discriminated against Patrick Shaw on the grounds of his disability contrary to section 49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, Patrick to be able to communicate any unsolved problems or issues he is having in the school environment in a collaborative discussion, thus allowing for him to feel like his problems are listened to and resolved. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and Patrick's ability. 5 That the Respondent discriminated against Patrick Shaw on the ground of his disability contrary to section 49L(2)(c) of the Anti-Discrimination Act by subjecting him to a detriment, namely a decline of his learning outcomes. 6 That the Respondent discriminated against Patrick Shaw on the ground of his disability contrary to section 49L(2)(a) of the Anti-Discrimination Act by denying him access to benefits provided by the School, specifically each of the strategies identified in the IEP/PLSP of Semester 2, 2019. Catchwords: HUMAN RIGHTS – discrimination – whether power to amend complaint under s 103 of Anti-Discrimination Act 1977 (NSW) should be exercised Legislation Cited: Anti­-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Cases Cited: Chand v Rail Corporation of New South Wales [EOD] [2007] NSWADTAP 54 McCrystal v Commissioner of Police, New South Wales Police Force (2018) NSWCATAD 299 Shaw v Secretary, Department of Education [2020] NSWCATAD 243 Thompson v Rail Corporation NSW [2008] NSWADT 329 Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24 Texts Cited: Nil Category: Procedural rulings Parties: Rebecca Shaw obo Patrick Shaw (Applicant) Department of Education (Respondent) Representation: Counsel: K Lloyd (Respondent)