Phu v State of NSW (NSW Department of Education and Training) [2008] NSWADT [2008] NSWADT 233

CITATION: Phu v State of NSW (NSW Department of Education and Training) [2008] NSWADT [2008] NSWADT 233

DIVISION: Equal Opportunity Division

APPLICANT Chi Chau Phu on behalf of Helen Xiu Ling Phu PARTIES: RESPONDENT State of NSW (NSW Department of Education and Training)

FILE NUMBER: 071062

HEARING DATES: 27 June 2008 and 16 July 2008

SUBMISSIONS CLOSED: 16 July 2008

DATE OF DECISION: 20 August 2008

BEFORE: Smyth M - Judicial Member; Mooney L - Non Judicial Member; Nemeth de Bikal L - Non Judicial Member

MATTER FOR DECISION: Preliminary Matter

LEGISLATION CITED : Anti-Discrimination Act 1977

CASES CITED: Masters v Rail Corporation New South Wales [2007] NSWADT 45

APPLICANT In person

REPRESENTATION:

RESPONDENT P Ginters, barrister

ORDERS: The application is dismissed.

REASONS FOR DECISION 1 Mr Phu applied to the Tribunal for an order under s. 105 of the Anti-Discrimination Act 1977 (the AD Act) on behalf of his daughter, Helen Phu. The order is sought to prevent the respondent reducing the level of support provided to his 13 year old daughter at Wairoa Special School and to stop the respondent preventing him visiting the school to observe his daughter's programme. 2 On 16 July 2008 the Tribunal refused the interim order application. The respondent has requested written reasons for that decision. These are the reasons in answer to that request. 3 Mr Phu lodged a complaint of disability discrimination in the provision of education on behalf of his daughter on 18 October 2005. In particular, the complaint is that she has been denied access or had her access limited to benefits provided by the educational authority contrary to section 49L(2)(a) of the AD Act and/or that she has been subjected to a detriment contrary to section 49L(2)(c) of the AD Act. That matter is part heard. 4 Ms Phu has autism, severe global developmental delay and neurofibromatosis type 1. As a result of her disabilities she does not have verbal communication. She engages in self injurious behaviour, for example, by hitting herself on the face and her head and biting at school and at home. Her self injurious behaviour escalated in the later part of 2005 and intensified throughout 2006. 5 Although Ms Phu continues to hit and bite herself, the incidence of self injurious behaviour at school and at home has decreased. There is a long history of dispute between the school, the Department of Education and Training and Mr Phu regarding to best way to manage and prevent Ms Phu's self injurious behaviour and to support her learning and feeding at school. 6 Mr Phu has consistently sought one-to-one care and support for his daughter requesting a teacher's aide for her. He says that this is necessary to reduce the incidence of her self injurious behaviour, to prevent her injuring herself, to ensure that she has sufficient support for feeding herself and to assist her learning. 7 Among other measures, since part way through 2007 the Department of Education and the Wairoa School have provided some additional staffing resources to assist Ms Phu. On the respondent's evidence these measures have been focused on preventing and reducing her self injurious behaviour and encouraging her to develop independence and communication skills. As part of their programme the school has provided an additional teacher's aide and/or student teacher in her classroom. This has allowed Ms Phu to have additional one-to-one support. By letter dated 3 June 2008 the Principal of Wairoa School, Mr Gallan, informed Mr Phu that the school believed that they were at the stage where they were able to begin fading out or reducing the amount of support that Ms Phu received. Mr Phu is asking the Tribunal to prevent the respondent implementing that decision. 8 The interim order application was heard at the end of the evidence in the matter and prior to the final submissions of the parties. Those submissions will be heard at a later date. The Law 9 The Tribunal has the power to make an interim order under section 105 of the AD Act 1977. Section 105(1) of that Act states (1) The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or respondent at any time, make an interim order: (a) to preserve the status quo between the parties to the complaint, or (b) to preserve the rights of the parties to the complaint, or (c) to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred, pending determination of the matter the subject of the complaint. 10 In this case, the order is sought to maintain the current level of support for Ms Phu, that is, to maintain the status quo. The discretion of the Tribunal to grant an order for this purpose is unfettered. Previous decisions of this Tribunal have dealt with the granting of interim orders. In Masters v Rail Corporation New South Wales [2007] NSWADT 45 the Tribunal analysed principles in regard to the granting of interlocutory orders in other contexts and some previous decisions of this Tribunal. The Tribunal applied a two part test asking is there a real issue to be tried? And if so, where does the balance of convenience lie? 11 In Masters v Rail Corporation the Tribunal noted that there was no requirement in s. 105 that an interim order only be granted where it is necessary to secure the effectiveness of the determination. The Tribunal said that any damage, the applicant may suffer is something to be weighed by the Tribunal when determining the balance of convenience. [At 12]. 12 The respondent has submitted that these tests do not apply in this matter as the evidence has already been heard. The respondent pointed out that in interim order applications there is usually limited evidence and they are usually heard at an early stage in the matter. It was the respondent's submission that in this matter it was not for the Tribunal to apply the balance of convenience test and that it was not appropriate to grant an order at the end of the evidence. 13 We have considered those submissions. Section 105 does not impose any such limitations and as we have said already, it is unfettered and a broad provision. In our view it is appropriate for us to consider whether to grant an interim order at this stage of the proceedings and we are able to look at the balance of convenience. Real issue to be tried 14 It is not in dispute that there is a real issue to be tried. The Tribunal has already heard five days of evidence and is satisfied that there is a real issue to be tried. Balance of convenience 15 The applicant submitted that if an interim order was not granted his daughter's self injurious behaviour would increase, her food intake would decrease and her opportunity to learn vital, basic communication skills would be slowed down. In essence, although not phrased in exactly this way, it was a submission that Ms Phu would be subjected to harm, or irreparable harm, if an interim order was not granted. 16 The applicant relied on the evidence before the Tribunal regarding the decrease in her self injurious behaviour that occurred following the provision of a one-to-one teacher's aide and teaching students to assist Ms Phu. Mr Phu's evidence was that in 2006 his daughter had hit herself frequently. For example, he estimated that she had hit herself between 50 and 400 times a day. He said that the incidence of hitting had deceased significantly to between 5 and 30 times a day after she was provided with a one-to-one care and support at school. The Tribunal was given various dates for when that support started but it seems to have been in place since March 2007 until now. 17 The applicant pointed to the evidence of Ms Phu's very high support needs. He also pointed to the risk posed by any self injurious behaviour, in particular, the risk that his daughter could go blind as a result of hitting herself in the eye. He relied on the evidence of his daughter's treating medical practitioners. The Tribunal has heard evidence from two doctors, Dr Nguyen, a general practitioner and Dr Mansour, a paediatrician. 18 Dr Mansour told the Tribunal that with continued self injurious behaviour Ms Phu could be at risk of retinal detachment and brain injury. Dr Nguyen gave evidence to the effect that if Ms Phu hit herself long and hard enough it could lead to a loss of vision. Both doctors recommended that Ms Phu have one-to-one supervision. In addition, Mr Phu also relied on the contents of a letter written by Dr Nunn in March 2008. 19 Mr Phu also submitted that if data on his daughter's self injurious behaviour was not collected then his daughter would not be safe. He submitted that no data would not mean that she had not hit herself, just that it had not been written down. He maintained that his daughter required support for feeding and disputed the evidence of Mr Gallan, the school principal, that the school would continue to provide feeding support. 20 Mr Phu disputed the evidence of the respondent's expert, Dr Kemp, who provided a report and gave oral evidence. He said that the provision of one-to-one care and support for his daughter would not cause her a detriment. He disputed the respondent's evidence that Regional Students Service Support Programme could be provided quickly if necessary based on, what he says, was the experience in 2006 where it was difficult to obtain. 21 The respondent submitted that the balance of convenience was "all one way" and that, in essence it was not in Ms Phu's best interests for the order to be granted. In addition, the respondent submitted that it was not appropriate to grant an order at this stage of the proceedings and that there was no controversy that Ms Phu's self injurious behaviour was significantly better. 22 The respondent relied on the evidence of Dr Kemp, their educational expert. Dr Kemp's evidence was that the most important consideration in relation to the facilitation of learning was the individual programme by staff. Although some aspects were one-to-one, it was important to have a programme continuously monitored and modified on the basis of student responses. It was submitted that the teachers are highly trained and qualified special educators. Dr Kemp and one of Ms Phu's teachers said that Ms Phu should have access to group learning. 23 Dr Kemp referred to research in the area that indicated one-to-one support was not considered necessary or appropriate. It was her evidence that an allocation of a one-to-one teacher's aide had the potential to create an unnecessary dependence and could be detrimental. In her opinion there was clear research regarding self injurious behaviour that aides and high level support should reduce over time so that the person does not become dependent on one-to-one assistance and is not encouraged to use self injurious behaviour to maintain it. 24 In the opinion of Dr Kemp, Ms Phu's self injurious behaviour had reduced over the past year and that reduction was likely to be the result of appropriate behaviour management strategies and programmes to develop her skills. In her opinion, the role of an aide in that was unclear. In her opinion, it was important that support was withdrawn when it was no longer needed and that decision should be made by school staff with the expertise and experience to make these decisions. The respondent also submitted that restraint was unlikely to be effective in reducing and stopping self injurious behaviour and that it may reinforce it. In Dr Kemp's view it was better to provide non contingent praise when she was not engaged in self injurious behaviour. An important strategy to decrease her self injurious behaviour was to increase her skills regarding communication, recreation, self care and independence. 25 In Dr Kemp's view if Ms Phu was engaged in purposeful and enjoyable activities she was less likely to exhibit self stimulatory behaviour in the form of self injurious behaviour. The school principal's evidence was that Ms Phu's self injurious behaviour was decreasing, she was now more confident and it was time for the school to start reducing that support. He told the Tribunal that the school would monitor her self injurious behaviour. If there was an escalation in it the school would review it. If Ms Phu needed extra support he would apply for additional funding from the Department. His evidence was that every class had feeding support and that the staffing ratio was two adults to six children in her class. In addition, he said that Ms Phu's class almost always had a teaching student present. 26 The respondent submitted that it was consistent with expert advice and the school staff's professional view that it was an appropriate time to start to reduce that support and test the success of the programmes that had been implemented. If there were adverse consequences from the decision, the decision could be re-visited. The respondent submitted that the status quo is one of monitoring, not one of positive obligation contrary to expert evidence and professionals' views of Ms Phu's perceived needs. In terms of data collection, the school considered that it is now beyond the point of needing to collect data on self injurious behaviour five days per week and had moved to once a week. They considered that data collection had to have a purpose and that was to identify the triggers for Ms Phu's behaviour. 27 In summary, the respondent submitted that while Mr Phu's personal opinion about his daughter could be given considerable weight it must be balanced against what experts had to say in an educational context. Given the research in the area, one-to-one support was not necessary or appropriate. The reduction in her self injurious behaviour over the past year was likely to have resulted from appropriate behaviour management strategies and a programme to develop her skills. The role of the aide was unclear. There was clear research that aides and high level support should reduce over time so that the person would not become dependent on the one-to-one support and was not encouraged to use self injurious behaviour to maintain it. The respondent submitted that if an interim order was granted it would prejudice the respondent. Discussion and Conclusion 28 At this stage of the proceedings the Tribunal has not had the benefit of final submissions and has not reached any final views on the evidence before it. We can only make preliminary findings for the purposes of the interim order. The Tribunal accepts that the self injurious behaviour that Ms Phu engages in does pose a risk to her and that it is possible she could injure herself. That risk is potentially serious. However at this stage of the proceedings we accept the evidence of Dr Kemp, the respondent's expert and Mr Gallan, the school principal, regarding the best way to manage that risk. The evidence indicates that during 2007 and 2008 the school has put in place a behaviour management strategy and increased support that Ms Phu has benefited from. Given the progress that has been made and the expert evidence of Dr Kemp we are not persuaded that the school's decision to begin to fade or reduce that amount of support will result in an increased risk of injury or harm to Ms Phu. 29 We are not satisfied, in this instance having taken into account all of the material before us and the submissions, that the balance of convenience favours the applicant. We have decided to dismiss the application for an interim order. 30 In the Tribunal's view Mr Phu is a caring father and has a sincere concern for his daughter's well-being. We do expect based on the submissions of the respondent and the evidence of Mr Gallan, the school principal, that the school will monitor the situation with respect to self injurious behaviour carefully and will provide Mr Phu with regular updates on any incidents of self injurious behaviour at the school. We also expect that if there is any escalation in Ms Phu's self injurious behaviour that the school would review the level of support required by Ms Phu. If Ms Phu requires extra support we would expect that the Department would honour their position before the Tribunal and an application for additional funding would be made. 31 Similarly, we would expect that if there was any deterioration in Ms Phu's feeding or learning that the school would take a similar approach. We also note that the applicant is at liberty to make a further application for an interim order in accordance with s. 105 of the AD Act 1977, for example to preserve the rights of Ms Phu, if the situation deteriorates following the implementation of the school principal's decision to start fading out or reducing the amount of support that Ms Phu has received. 32 The Application is dismissed.