Equal Opportunity Tribunal of New South Wales CITATION: Demmery -V- N S W Department Of School Education [1997] NSWEOT COMPLAINANT: Peter Demmery and Ruth Demmery on behalf of their son, Luke Demmery RESPONDENT: NSW Department of School Education NUMBER: 111 of 1996 Mr Graham Ireland ( Judicial Member ) TRIBUNAL: Ms Laura Mooney Mr Owen MacDonald OAM GROUNDS OF COMPLAINT: Disability in the area of Education DATES OF HEARING: 03/20/1997; 03/21/1997; 04/21/1997; 04/22/1997; 04/23/1997 DATE OF JUDGMENT: 11/26/1997 Complainant: Mr P Batley Legal Aid NSW (Solicitors) LEGAL REPRESENTATIVES: Respondent: Ms M Kelly Crown Solicitor's Office (Solicitor) Mr S Benson (Counsel) JUDGMENT IN FAVOUR OF: The Tribunal has inquired into a complaint of discrimination made on behalf of Luke Demmery by his parents, Ruth Demmery and Peter Demmery, against the Respondent. The complaint was referred to the Tribunal by the President of the Anti-Discrimination Board, pursuant to s 94(1) of the Anti-Discrimination Act 1977 (the Act). GENERAL BACKGROUND Luke Demmery was born on 26 March 1986 and at the time of the commencement of the inquiry by Tribunal, was aged 10 years. He is profoundly deaf. He was diagnosed as having severe hearing loss when he was about twelve months of age. His degree of hearing loss increased after the original diagnosis. He has had profound hearing loss since he was about 18 months old. There is no dispute that his degree of hearing loss is a disability within the meaning of the definition of disability in the Act The Respondent is an educational authority within the meaning of the Act and at all material times administered Kendall Central School. At about 12 months of age, Luke had hearing aids fitted at the National Acoustic Laboratories, and commenced using the total communication method to assist his hearing and cognitive skills, with the help of the Early Intervention Centre in the Australian Capital Territory. At that time Luke and his parents resided in Canberra. Luke's general progress as a child was slow, for example he did not commence to walk until he was three years of age. In July 1989, when he was three years old, his parents decided that it would be in his best interest to move away from the total communication and signing learning process, to the auditory/verbal mode of communication. He was enrolled at the St Gabrielle's Early Intervention Centre in Sydney which provided support for his enrolment, although the centre is not a government agency. The use of sign language was stopped and his parents discouraged lip reading in order to promote the maximum use of his hearing capability. Outside of lessons, he was permitted to lip read but sign language was discontinued altogether. Mr and Mrs Demmery became dissatisfied with the assistance available under the total communications program through the Early Intervention Centre in the Australian Capital Territory. It had been proposed that Luke attend Hartley Street School in Canberra, a school for children with disabilities. His parents were concerned that the Hartley Street School included children with intellectual disabilities as well as children with sensory disabilities and that this would be detrimental to Luke's development. These concerns led to his enrolment in the St Gabrielle's program and to the adoption of the auditory/verbal communication technique in the hope that Luke would be able to learn to speak intelligibly and become an independent hearing impaired child reaching his full potential in a mainstream school setting. His parents had visited Kendall and considered it an attractive little town where they could afford to buy a home. They considered that Kendall Central School would be suitable for Luke, as a school within the community, with reasonable resources. They spoke to the principal of the school in December 1990. He indicated that there should be no difficulty in enrolling Luke when the time came. His parents decided to buy a home in Kendall and they enrolled Luke's older brother in the school in December 1990. In January 1991 Luke was enrolled in St Joseph's Pre-School at Laurieton which is in close proximity to Kendall. Luke attended St Joseph's for two days a week. His enrolment was supported by the Respondent which allocated Mr Mark Thurston as the Itinerant Support Teacher - Hearing (ISTH) to assist Luke for one hour each day of his attendance. Mr Thurston had been employed by the department since 1982 and transferred to the Port Macquarie area in 1990. He is a teacher specially trained in the support of deaf children. He has many years experience in the role. By the end of 1996, Mr Thurston supervised the work of five other ISTH specialist teachers. He describes his main function "to provide an educational program to meet the needs of a child with a hearing impairment." In July 1991 Mr and Mrs Demmery approached the Kendall Public School for Luke to be enrolled in the kindergarten class commencing in 1992. Initially, the school advised Mr and Mrs Demmery that it did not have the resources to cater for Luke's special needs. In December 1991 the principal advised the parents that Luke's enrolment had been deferred. Following representations made by his parents to government officials and to senior officers of the Respondent, the school invited Mr and Mrs Demmery to make a further application for Luke's enrolment and in February 1992 they were informed by the school principal that Luke's enrolment had been accepted. Luke commenced at the school in the kindergarten class on 25 February 1992. The circumstances surrounding the original application for enrolment and the subsequent negotiations for Luke's acceptance at the school, are not the subject of this complaint. The Respondent states that the need for care in the acceptance of Luke's enrolment arose out of the consideration that the department needed to give to the funding of the needs of a profoundly deaf child and his integration into a normal school setting especially at a school in an isolated country community. In the kindergarten year (1992) Luke, during the first term, attended classes in the morning sessions and for the rest of the year attended for both morning and afternoon classes. During this year the department provided to his class the services of Mr Thurston for five hours per week and the services of a teachers aide for ten hours per week. In March of 1992 Mr Glenn Pleasance was appointed as the assistant principal of the school. Mr Pleasance had experience as an itinerant support teacher of deaf children. Mr Thurston applied his special skills in the teaching of children with hearing problems, to assist Luke and his class teacher and the teacher aide in understanding Luke's problems and special needs and to develop an individual education program for Luke. His duties also required the monitoring of Luke's progress and keeping his parents informed on matters affecting his welfare and educational development. Regular review meetings were held with Luke's parents. These meetings were usually attended by Mr or Mrs Demmery, or both of them, Mr Thurston, the principal and one or more other teachers at the school. The meetings were held at least each six months with the objective of reviewing Luke's progress and determining his needs for the next six months and to agree on a submission to the Respondent to provide funds to support the educational program for Luke during the next twelve months. During the early part of 1992 Mr and Mrs Demmery were in regular contact with the Children's Cochlear Implant Centre (CCIC). The centre was assessing Luke for suitability for a cochlear implant. On 10 June 1992 Luke underwent an operation during which a cochlear implant was inserted in his inner ear and a receiver/stimulator attached to the cochlear implant was placed in Luke's mastoid bone, under the skin behind his ear. On 21 July 1992 a microphone was placed behind Luke's ear. The microphone was connected to a speech processor which, in turn, was connected to a transmitter coil. The transmitter coil was placed on the skin of Luke's head immediately above the receiver/stimulator which had been inserted in the June operation. This equipment was then switched on. The process which then occurs is described as follows. "The microphone picks up soundwaves and sends them down the cable to the mini-speech processor. The speech-processor breaks down the sounds and codes them, then sends them back up the wire to the external transmitter coil. This coil emits a radio signal, which is picked up through the skin by the implanted receiver. Then the receiver/stimulator sends the appropriate electrical signals down the fine wires of electrode array in the cochlear and stimulates nerve tissue. The hearing nerve carries the stimulated signals to the brain which interprets them as sounds". Subsequently, Luke attended the CCIC one day each week for "mapping" and habilitation, during the period from July to September 1992. The decision to receive the cochlear implant for Luke, was a major one for his parents. It was also an important decision by the CCIC which required a detailed assessment of Luke as a suitable recipient for the implant. A number of questions arose from the preliminary assessments, especially relating to the cognitive aptitude of Luke. This was significant as research had shown that persons with a higher aptitude are most suitable to adapt and learn the messages being sent through the implant. The less the cognitive aptitude of the recipient, the more risk is associated in effecting the operation and the acquisition of advanced communication skills. Mr Demmery was advised by the CCIC that a decision on the installation of an implant for Luke, should be deferred until the issue of his cognitive aptitude was resolved. Mr Demmery did not accept the advice to defer the operation and insisted that the operation proceed. At this stage the Respondent was approached to assist and it agreed for its psychologist, Mr Roger Stonehouse, to go to the school and carry out an assessment as required by the CCIC to measure the cognitive skills of Luke. As a result of the report from Mr Stonehouse it was decided by the CCIC to proceed with the cochlear implant. In 1993, Luke proceeded to year 1 at the school. His class teacher was Mrs Lynne Dunne. At a review meeting in September 1992 it was recommended to the department that for 1993 Luke's class be allocated five hours per week of ISTH time and ten hours per week for a teacher aide. The department in 1993 provided funds for the continuation of Mr Mark Thurston as ISTH for five hours per week and increased the teacher aide allocation to 15 hours per week. Mrs J. Smallwood was the teacher's aide appointed to assist Luke's class in this year. In May 1993 the CCIC provided a report in relation to Luke's use of the implant after the first 36 weeks of its installation. During this period Luke continued on a fortnightly basis with habilitation from the centre. It was reported that he has made pleasing progress, that he accepted the device and it was predicted that in time he would become an optimal user. The report states "at this stage Luke's greatest area of need is the development of language." Subject to the visits to the CCIC, Luke attended school on a daily basis. In December 1993 a review meeting considered Luke's requirements for 1994. Luke progressed in 1994 to year 2 at the school. His class teacher was Mrs S Hewes. Mr Mark Thurston continued as the ISTH for five hours per week and Mrs Smallwood continued as the teacher's aide for 13.5 hours a week. Luke attended school on a daily basis during this period. In February 1994 Mrs Carmel Thew was appointed the principal of the school. In July 1994 by arrangement between his parents and the class teacher, a communications book was instituted for the purpose of assisting in the sending of messages relating to Luke between the class teacher and his parents. Also in July 1994 the CCIC conducted a comprehensive review of Luke's progress and response to the cochlear implant. The report is in two parts. The first dealt with his speech perception skills. It stated "overall, Luke's speech perception skills have improved since his assessment six months previously. Progress was observed in his open set listening for words and sentences and in his ability to identify phonemes and words presented in a closed set. Luke experienced difficulty on the comprehension sub-test of the GASP, but this could possibly be related to problems in understanding some of the questions asked." The second part of the report deals with tests related to his language and speech skills. The summary is not so encouraging. "He was very nervous at the beginning of the session and this may have negatively affected his performance. Despite this it is evident that Luke has made minimal progress over the last year. His language comprehension has remained at around the same four-year-old's level while expressive language is functioning below this level. Luke's speech has improved at a reasonable rate but remains moderately unintelligible. These results imply that future educational options for Luke must take into account his severe language delay." On 27 August 1994 a brother to Luke, Thomas, was born. On 21 September 1994 an incident involving Luke occured at the school. The incident involved an older student causing Luke to fall but without any serious injury. Luke, however, was upset by the incident. His parents reported the matter to the school and to the police. The school conducted an investigation but was unable to locate or identify the other student involved and no further action was taken. On 15 November 1994 the regular half-yearly review meeting was held which recommended that for 1995 more work needed to be given to improving Luke's speech and that six hours per week of ISTH time should be allocated to Luke's class. No complaint was made by Mr and Mrs Demmery about the special provisions made by the Respondent or by the school in the integration of Luke in the school in 1992, 1993 and 1994. The transition that Luke was to make from year 2 to year 3 is recognised as a substantial transitional period in the educational development of all students and the two expert witnesses who gave evidence before the Tribunal emphasised that the transition was especially significant for a child with Luke's disabilities. It was made clear by Luke's parents at the review meeting in November 1994 that they required the school to provide for Luke to take the step of moving into year 3 in 1995. The evidence before the Tribunal is not conclusive as to the precise time at which it became apparent to Mrs Thew, the principal, and to Mr Pleasance (the assistant principal), that at the beginning of term one in 1995, the composite year 2/3 would not have a permanent teacher available and that the school would have to make temporary arrangements pending the appointment of a permanent teacher. A composite 2/3 year class was the only year 3 class available for the placement of Luke in 1995. The permanent teacher who would have taken that class announced her retirement, according to the school, in January 1995. There is some suggestion in the evidence that this teacher made it known, and that the school would have been aware, during the latter part of 1994 that the teacher was taking long service leave and was not intending to return. The evidence does not enable the Tribunal to come to a conclusion as to when the school was first aware that a permanent replacement of a teacher was required in 1995. Mrs Leanne Clenton was appointed to fill the temporary vacancy in the year 2/3 class at the school. She was a casual teacher employed by the Respondent. She had been a teacher for about four years and had been a casual teacher at the school at various times over a three year period. Mrs Clenton was appointed by Mr Pleasance whose role as assistant principal included emplacement of classes and teachers at the school. There is some difference in the evidence of Mrs Clenton and of Mr Pleasance as to the terms of Mrs Clenton's appointment to the year 2/3 class. Mr Pleasance stated that there was a vacancy at the school and that it was unclear to him as to how quickly it would be filled. He stated that he arranged with Mrs Clenton to fill the vacancy on a casual basis until further notice which at that time he believed might be for the whole of 1995. Mrs Clenton stated that towards the end of 1994 she was informed she was to take over, on a temporary basis, the year 1 class of Mrs Hewes in 1995. However, at the beginning of 1995 Mrs Clenton was required to take the year 2/3 class on a temporary basis until the appointment of a permanent teacher which would occur at the end of the fourth week. At that time Mrs Clenton would take over the year 1 class. In fact, Mrs Clenton stayed with the year 2/3 class until the 27 March 1995. Mrs Pope, the permanent appointment, commenced with the year 2/3 class on 28 March 1995. Mrs Clenton then moved to the year 1 class. In 1995 the class load of the primary school comprised two kindergarten classes and seven classes between years 1 and 6, of which five were composite classes. Other than the year 2/3 class, each of the other classes had a permanent teacher appointed at the beginning of 1995. It was known at that time that Mrs Hewes, the teacher of year 1, would leave on maternity leave early in the first term of 1995. Mrs Clenton, from the commencement of term one in 1995, was assisted by Mr Mark Thurston for six hours per week as ISTH and by Mrs Dewar as teacher's aide for nine hours per week on four mornings from 9am until 11.15am. Luke Demmery regularly attended the class during the first term which concluded on 14 April 1995. Second term commenced on 23 April 1995, however on 18 April 1995 Luke was fitted with a new Spectra 22 speech processor at the CCIC in Sydney. This is a more advanced processor featuring the screening out of background noise and with less harsh speech sound. His parents kept Luke at home until 8 May 1995, to allow him to adjust to the different sound information through the new processor. On 19 May 1995 an incident occurred at the school assembly about which a complaint of direct discrimination is made and is covered in more detail later. On 22 May 1995 a review meeting was held at the school attended by Mrs Demmery. On 25 May 1995 Luke was found by his mother, crouched and sobbing at the gate after school. This was his last day of attendance at the school. On 29 May 1995, Mr and Mrs Demmery wrote to the Respondent stating matters of grievance and seeking an investigation and an alternative school placement for Luke. On 9 June 1995 a grievance resolution meeting was held at the school, chaired by Mr Van der Veen, the cluster director for the Port Macquarie region and also attended by Mr and Mrs Demmery, Mrs Thew, Mr Thurston and two representative of the teachers' federation. On 19 June 1995 Luke was enrolled by his parents at the St Joseph's School, Laurieton, which is a Catholic School outside the jurisdiction of the department. Mrs Pope, the permanent teacher appointed to the year 2/3 class from 28 March 1995, was absent from the class on a number of occasions between 3 April 1995 to 23 May 1995. On three of these days Mrs Pope was engaged on transfer leave to enable her to seek local accommodation following her transfer from Kensington Public School in Sydney. Out of a total number of 36 school days in this period Mrs Pope was absent for 19 days. This was caused by severe illness arising from her pregnancy. Mrs Pope was not aware of her pregnancy at the time she took up her appointment. Luke was present for 12 of the 19 days on which Mrs Pope was absent (on one day, 11 May 1995, Mrs Pope left at 11am and Mrs Thew took over the class for the remainder of the day.) On the 12 days on which Luke was present, four different temporary teachers took the class, including Mrs Thew on 11 May 1995. One temporary teacher had the class on one day only, one teacher for two days, and one teacher, Mrs McInally, for eight of the days. During second term 1995, the year 2/3 class had six teachers including Mrs Clenton and Mrs Pope. THE RESPONDENT'S INTEGRATION POLICY AND ITS IMPLEMENTATION The inquiry by the Tribunal into this complaint, does not require the Tribunal to pronounce on the adequacy of the integration policy of the Respondent. Counsel for the Complainant acknowledged that the complaint does not encompass a review of the documentation of the Respondent relating to its integration programs but does raise in the complaints based on indirect discrimination, the adequacy of the implementation by the school of the Respondent's policies on integration, and the manner of the application by the school of those policies to the circumstances relating to Luke Demmery in 1995. It will be necessary to have regard to some of the basic requirements of the Respondent's policy in the context of a determination of the adequacy of the application of those policies at the school in 1995 so far as they affect Luke Demmery. In 1993, the Respondent issued a document entitled "Special Education Policy". It was agreed by the parties and also by the expert witnesses that the policy of the Respondent is based on the principle of normalisation "that is the creation of a lifestyle and set of conditions for people with disabilities which are as close as possible to those enjoyed by the rest of the population." It was emphasised that the words "as close as possible" means that there will be differences, and that in a case such as this, it is wrong to equate differences with discrimination. The policy statement continues "in line with this policy, the Department of School Education: Acknowledges that every child with a disability, learning difficulty or behaviour disorder has the right to attend the regular neighbourhood school where this is possible and practical and is in the best interests of the child." Again the statement is qualified by "where this is possible and practical and in the best interests of the child." The policy states "that parents and care givers will be involved in assessment, placement, review and programming for their children with special teaching and learning needs." And, "recognises that for some students their best interests would be met in special educational settings." It states that the department will continue to move from the provision of predominantly segregated educational settings to the provision of services in the regular neighbourhood school for students with disabilities, by, the provision of services to support students with disabilities in the regular classroom: the provision of support classes in regular schools: the provision of special education and services to isolated students." The policy deals with the implementation responsibilities of the Director-General, of the Special Education Directorate, of regions, of schools and of parents and care givers. The policy statement is supported by departmental documents such as "A guide to the enrolment of children with disabilities into regular classes", which contains five segments vis. background to integration; policy implication; the enrolment process; appendices; and regional material. The appendices comprise separate subject material such as "Travel training for students with disabilities", "Use of personnel", "Use of material resources". In the guide produced by Mrs Thew the "Regional material" comprised a guide for the implementation of enrolment of children with disabilities into regular classes in the north coast region. Evidence was given by two experts about the principles of normalisation and the policy of the Respondent. Dr Loretta Giorcelli is currently the program director of Special Education and Disability Studies at the University of New South Wales. She has worked for 28 years in the area of special education and for several years, was the state director of special education with the Respondent and in that role, she oversaw the promulgation of its current special education policy. She has also taught deaf and hearing impaired students. She has a wide experience nationally and internationally and is familiar with service delivery in the area of special education. Dr Giorcelli examined some of the correspondence between Mr and Mrs Demmery, the Respondent, and the Anti-Discrimination Board which formed part of the report by the president of the Board to the Tribunal, and she examined some of the reports relating to Luke Demmery made by the CCIC and associated assessments, as well as the reports and minutes of review meetings of the school and several of the school reports relating to Luke. Dr Giorcelli also read the affidavit filed with the Tribunal by Mark Thurston. In her affidavit, Dr Giorcelli states that having studied this material, it is her opinion that Luke's progress would have been accelerated by close specialist, multi-disciplinary attention to his educational needs; there appears to have been some level of defensiveness and antipathy between protagonists in this case; the level of support provided by the school to Luke was adequate but with a question as to the way it was used in the consistency of personnel provided to Luke's class; the changes in class teachers and the presence of several relief teachers would have affected Luke's education negatively over the period of time in question. These remarks are qualified by her statement that they are not observational or clinical in nature but reflective of current thinking in the area of inclusion or integration and of her own experience in the integration of deaf students and on her observations in consultative work in the schools where various models of integration practice are in place or being trialled. In her evidence, Dr Giorcelli reinforced her statement that the support offered by Mark Thurston was not only adequate but also effective for the level of training and expertise that would have been available to a teacher of his experience and standing. In relation to the series of changes that occurred in the casual relief teachers at the school in 1995, Dr Giorcelli stated that she concluded that Mr Pleasance was not in a position to pre-judge that there would be such a series of changes and therefore his action in obtaining casuals during this period, would be considered appropriate. She considered the two months of disruption as regrettable and less than ideal for all children and critically negative for Luke and any other child with a disability in that classroom. She would have used the presence of Mark Thurston to come to an arrangement that provided more stability for the whole class and for the routine of that class for example, by using a co-teaching arrangement for a few days rather than an hour each day. In relation to Luke, in the application of the principles of normalisation, Dr Giorcelli expressed her view that there had been a genuine attempt to apply the principles but there had been some management and cultural attitudes that militated against the proper application of those principles. She stated that there had been particular educational circumstances that had not allowed for the fulsome application of those principles "but I also believe that there has been genuine attempts on the part of individual professionals to meet their obligations in putting those principles into place." In her affidavit Dr Giorcelli stated that it would be reasonable to expect schools to be able to demonstrate the application of a series of principles for effecting a successful integration of a disabled student. The Complainant argues that the school, in 1995, did not achieve a sufficient level of compliance with these principles or in some cases did not meet the principles at all. Dr Leigh, the other expert, concluded "on the evidence available in the materials provided to me... reasonable efforts have been made to provide most of the types of support for Luke in his school and classroom situation." Dr Giorcelli was asked to comment on the number of changes in teachers in the year 2/3 class in 1995 and the likely impact on Luke. Dr Giorcelli stated that Luke was required to adjust to seven sets of auditory patterns during that period and that is an abnormally high number of linguistic adjustments for a child of eight in a classroom setting. When asked if that was not an unusual situation but might arise in a normal integrated school setting, Dr Giorcelli stated that it was probably a little higher than average if data is looked at across a number of schools. Dr Giorcelli distinguished between the social adjustments required of students, to a number of teachers coming to the classroom, and the linguistic and academic adjustment required to be made by the students. She observed that the impact on a student with the disabilities of Luke, are minimised by the efforts of the specialised teacher and the specialised staff. The other expert witness was Dr Gregory Leigh. Dr Leigh is the head of Renwick College a centre for post-graduate professional training and research in the education of children with sensory disabilities located at North Rocks, Sydney, and he is the senior lecturer in special education at the University of Newcastle. He has worked in the field of special education for students with sensory disabilities, particularly deaf and hearing impaired students, in three Australian states and in the United States of America. Dr Leigh stated that on the evidence available and materials provided to him with the exception of providing access to an alternative language or communication system, reasonable efforts had been made to provide most of the types of support required for Luke in his school and classroom situation. In the case of alternative communication systems it was his understanding that Luke's parents made a formal request that no form of manual communication system or language be provided as part of the support processes for Luke. He stated that for hearing impaired students, the quality of educational experience and the extent to which an individual child adjusts comfortably and happily to a classroom, depends on the match between the child's communication abilities and the communication demands of the classroom and school environment. Where there is a significant mismatch there is significant scope for personal frustration. Dr Leigh also stated that the absence of Luke's normal class teacher and the presence of a replacement teacher for periods of time during May and April in 1995 may have been a factor contributing to an emotional response and may have had some effect on Luke's progress for those limited periods of time. He noted the potential for partial amelioration of the impact of these changes by the consistent presence of the long term teacher's aide and the itinerant support teacher. He also noted the changing of the speech processor in the cochlear implant as another major change in the routine for Luke in April 1995 in terms of both the procedure and the outcomes of his use of the device. He states that the Spectra has completely changed the coding strategy that filters 22 different possible bands of energy that can be mapped onto the signals being received. Some relearning of what the signal is telling the wearer, must occur. The material did not enable Dr Leigh to form an opinion of the magnitude of the alteration and the nature of the auditory signal being received as a result of this change or the length of any adjustment process. He also noted that the birth of a brother could be a source of stress and instability and that it is not uncommon for there to be a degree of concern and emotional reaction by any child to the birth of a sibling. In relation to the design and implementation of an individual education program for a hearing impaired student, in the opinion of Dr Leigh, it is not appropriate for the teacher to rely on the ISTH but it is not inappropriate for the program to be designed in collaboration between the two and for the ISTH to deliver the program for part of the time. In a proper collaborative and consultative process, the parents of the hearing impaired child, need to be told all the information about the child's welfare and progress in order to instil trust and to reduce tensions between the desires and demands of parents and the views of teachers about the appropriateness of the integration process. Dr Leigh describes as not ideal the circumstances of a child like Luke to experience a period of two months involving six different teaching personnel, but he was unable to comment on the likely extent of the disruption caused to the class or to Luke. Dr Leigh considered that without good reason, if he had control over Luke's class placement, he would not place him in a classroom at the beginning of the year where no permanent class teacher had been appointed and only a casual relief teacher was available. He stated however that if all other resources were committed to other situations that demanded consistency then you would not seek to undermine the consistency of those other situations. He considered that consistency is a desirable characteristic of any educational program for any student and in the case of Luke Demmery there was not a great capacity to cope with change and accordingly there was a greater need to provide consistency. RELEVANT LEGISLATIVE PROVISIONS The complaint alleges that the Respondent unlawfully discriminated against Luke Demmery, in breach of the Act, and relies on instances of direct discrimination and a more general allegation of indirect discrimination. The allegations require consideration under the following provisions of the Act. "49B. (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator: (a) 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 such 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. (2) For the purposes of subsection (1)(a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability." "49C. In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including: (a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and (b) the effect of the disability of a person concerned; and (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship." "49L. (2) It is unlawful for an educational authority to discriminate against a student on the ground of disability: (a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority; or (c) by subjecting him or her to any other detriment." "(5) Nothing is subsection (2)(a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the educational authority." Subs (3) and (4) of s 49B, and subs (1), (3) and (4) of s 49L are not relevant to the complaint. ALLEGATIONS OF DIRECT DISCRIMINATION The complaint comprises three separate instances of alleged direct discrimination by the Respondent against Luke Demmery on the ground of his disability. In order to establish the complaint, the Complainant must establish to the satisfaction of the Tribunal that on the balance of probability, and taking into account the seriousness of the allegation: the Respondent treated Luke Demmery less favourably than in the same circumstances, or in circumstances which are not materially different, the Respondent treated or would treat a person who does not have his disability, and such less favourable treatment by the Respondent against Luke Demmery, was on the ground of his disability. The three instances complained about are: 1. On 19 May 1995, at the year 2/3 class performance at the school assembly, Luke was not included in the class performance and was left sitting on his own and he became distressed by being left out of that performance. 2. On 19 May 1995 the year 3 segment of the year 2/3 class of the school was playing sport on the volleyball court and Luke Demmery was not included in the game and stood apart in a distressed state. 3. In or about May 1995 the class teacher, Mrs Pope, placed herself so that her face was close to and directly in front of Luke Demmery and she shouted at him and he began to cry after he was shouted at. This complaint encompasses two separate occasions: . in April or May 1995, Mrs Pope yelled at Luke, . on 25 May 1995, Mrs Pope yelled at Luke. The Complainant submitted that each of these three instances is not considered a separate complaint for the purpose of an award of damages and if one or more instances are established, the Complainant is not seeking from the Tribunal a separate award. The Complainant however, submitted that the Complainant did not require the Tribunal to consider the cumulative effect of one or more of the instances and was asking the Tribunal to consider each instance as a separate and distinct item of complaint. Accordingly, it is necessary for the Tribunal to consider each of the instances and the circumstances surrounding the allegation and to reach an independent finding on each allegation. 1. On 19 May 1995, Mrs Pope had been absent on sick leave for 16 consecutive school days, except for 11 May 1995 when Mrs Pope returned for approximately two hours and Mrs Thew took the class for the rest of the day. Luke Demmery was present for eight of the 16 days. For seven of those days Mrs McInally was the class teacher, the other day being the 11 May on which Mrs Thew took the class for most of the day. It is asserted by the Complainant that Luke Demmery was left out of the assembly on that day, and left out of the performance by his class at the assembly, because he was deaf. The complaint proceeds by claiming that Luke was left alone whilst the rest of the class went to the front of the assembly to perform and that he was visibly distressed during the performance until after the assembly was completed when Mr and Mrs Demmery went to Luke and they comforted him. This version of the circumstances at and during the assembly are at variance to the description given by Mrs McInally. She states that the school had a regular fortnightly assembly and each class takes its turn to make a presentation to the assembly. The class practises for two weeks before the assembly. Children were selected to read card responses and they had 11 seats on which children sit at the front of the assembly. Mrs McInally chose a chant which was easy to learn and the rest of the school would join in in response. The class practised this performance until the morning of the assembly on 19 May. On the days that Luke was in the class, he sat directly in front of Mrs McInally in the front row so that he could see her actions when practising the chant. He would join in with the clap pattern but he didn't join in with any of the verbalisation of the chant. On 19 May 1995 the auditorium of the school was not available for the assembly and so a last minute rearrangement was necessary to set up the assembly in the quadrangle. Mrs McInally spoke to Luke prior to starting the setting up in the quadrangle, soon after he arrived at school. She states that she asked him if he wanted to come out the front and that he shook his head. He made no verbal response. The assembly proceeded as normal with the item from the year 2/3 class being presented at the end of the assembly. Mrs McInally stated that she sat Luke at the end of the row nearest to his parents and with the rest of the class who weren't involved in coming out to occupy the 11 chairs in the front of the assembly. Mrs McInally moved to the front of the assembly and to the left, in case the class needed her. Mr and Mrs Demmery were in the audience and she saw Mr Demmery get up and go to Luke and take him by the hand over to the seat where Mr and Mrs Demmery were sitting. Mrs McInally did not observe Luke to be crying or upset. After the assembly Mrs McInally observed Luke still sitting with his parents. She proceeded to pack up the assembly and move the class inside. She states that Luke then joined the class and came into the classroom with his classmates. Mrs McInally saw nothing to indicate that he was upset. He was fine in the classroom for the remainder of the morning. Mr or Mrs Demmery did not say anything to Mrs McInally about Luke being upset or not participating in the assembly. Mrs Demmery, in her affidavit, describes the incident as follows. "On 19 May 1995, my husband and I attended the school assembly. We saw that Luke was not included in his class activity. He was sitting by himself in the area vacated by the other members of his class, when they went to the front of the assembly to present their song. I could see that Luke was very upset. His head and eyes were moving around in jerky movements and he appeared to be sobbing and wringing his hands." Mrs Demmery did not otherwise refer to this incident in her evidence. The Tribunal must consider this allegation in the light of the evidence and the conflict between Mrs Demmery's view that Luke was sitting on his own and was upset, on the one hand, and the evidence of Mrs McInally that she did not observe Luke being upset at any stage and his parents had not mentioned or complained to her about Luke being upset. The Tribunal finds that the evidence is not sufficient to support a finding either that the circumstances demonstrate any unfavourable treatment of Luke either by the way in which Mrs McInally dealt with the situation where Luke indicated that he did not wish to participate in the class presentation or her treatment of Luke where she sat him close to his parents when he was left alone whilst some of the other class members proceeded with the presentation. 2. The next incident occurred also on 19 May 1995. Mr Demmery stated in his affidavit, "On 19 May 1995, because of my concern at Luke's physical distress during the school assembly that morning, I went to the school early in the afternoon to see how he was getting on. I went to Luke's classroom and saw that only the year 2 students were present in the class and that they were being taught by Carmel Hewes and Joy McInally. I looked around in the school grounds for Luke and saw Luke's classmates playing something on the volleyball court. Luke was standing off to one side of the court on his own wringing his hands in his jumper and crying. I went to the classroom to speak to Joy McInally about this and told her to the effect, "I am taking Luke home. He seems very upset. Ruth and I are worried about his welfare and his well-being." Joy McInally replied to the effect, "Luke's been behaving like this a lot lately, even during recess."" In her affidavit, Mrs McInally states, "I recall just after lunch time on 19 May Mr Demmery knocked on the class door asking to collect Luke. I had the year 2 component in the class and told Mr Demmery that Luke was with the year 3 class at primary sport. I directed him to the school oval and he left. "After about ten, fifteen minutes, Mr Demmery returned with Luke to get Luke's bag. He told me he was taking Luke home because he did not think Luke could participate with sport. I acknowledged that Luke was being taken home." Mrs McInally proceeds to deny the conversation deposed to by Mr Demmery. Neither Mr nor Mrs Demmery gave any further evidence concerning this incident. In evidence, Mrs McInally referred to Luke's behaviour during lunch times when he tended to stay by himself mainly near the classroom. Mrs McInally mentioned this on one occasion to Mrs Demmery. Mrs McInally also referred to the occasion after lunch on 19 May 1995 when Mr Demmery called into the classroom. He asked for Luke and Mrs McInally instructed him that Luke was at the primary sport with the year 3 and that she thought they had gone down to the oval. She says that Mr Demmery said "thank you" and said he would go and look for Luke with the primary sports people. She said that Mr Demmery came back a little later and said to her that he was collecting Luke's bag and he was taking Luke home for the rest of the day as he had not been involved in the sport that was going on and that he did not think Luke could cope with the sport and he was taking him home. Mrs McInally did not recall Mr Demmery making any further comment to her. The allegation is that Luke Demmery had been excluded from the sports activity on that day and that as he couldn't cope with the exclusion, he had been subjected to unlawful discrimination. In the view of the Tribunal, the evidence does not support a finding that Luke had been excluded from sports activity on that occasion. Mr Demmery had concluded that from his observation of Luke's non-participation that there had been a positive exclusion from his participation in the activity of the other students. There is no evidence before the Tribunal which would enable it to support the conclusion reached by Mr Demmery. Mr Demmery was unable to identify the teacher in charge of the sports activity at the time nor did he give evidence that he had attempted to locate the teacher and to determine the reason why Luke was not participating. The evidence falls far short of what would be required in the circumstances to justify a finding of less favourable and unlawful treatment of Luke on this occasion. 3. The Complainant makes two claims of less favourable treatment by Mrs Pope of Luke Demmery arising out of incidents in which it is alleged Mrs Pope shouted at Luke. The first incident occurs on a date which the Complainant cannot specify because the allegation relies on a statement made by another child to the child's mother and was subsequently conveyed by the mother to Mrs Demmery, following a meeting with Mrs Thew, attended by the child's mother and the mothers of two other children. Mrs Susan Chivers, the mother of the child, deposed that her daughter Rochelle said to her one day after school in early or mid-May 1995, "Mummy, I don't think Mrs Pope is a very nice person." Mrs Chivers said to Rochelle, "I don't want you to talk about your teacher like that." Mrs Chivers states that Rochelle then went away and did a few things for a few minutes then came back to her an said, "Well, she's not a very nice lady." Mrs Chivers said, "Why do you say that?" She replied to the effect, "Today she yelled at Luke." Mrs Chivers said, "What did Luke do that Mrs Pope yelled at him?" Rochelle said, "No, but she yelled at him." Mrs Chivers said, "How did she yell at him?" and that Rochelle came up close to her face so that her face was about six inches away and yelled out and said, "She was yelling at him because his work wasn't finished and he couldn't figure it out." Mrs Chivers stated that Rochelle was in the year 2/3 class with Luke but she withdrew Rochelle from the school in mid-May 1995 and placed her at St Joseph's Primary School, Laurieton. She stated that a few days after Rochelle left the school, that Mrs Chivers attended a meeting with two other parents and Mrs Thew. There is a dispute in the evidence of Mrs Chivers and Mrs Thew about the contents of the conversation that occurred on that occasion. Mrs Chivers says that she told Mrs Thew about her conversation with Rochelle. Mrs Thew denies that Mrs Chivers related this conversation and that Mrs Thew refused to hear hearsay statements about the children of other parents without those parents being present. Irrespective of the conflict between the evidence of Mrs Chivers and Mrs Thew about what was said at the meeting, the crux of the allegation that Mrs Pope had less favourably treated Luke by shouting at him in class, is based entirely on the hearsay evidence of Mrs Chivers who relates what her daughter said to her. Her daughter, Rochelle, did not give evidence before the Tribunal. The Tribunal considers that the nature of the evidence is so tenuous that the Tribunal is not justified in finding that Mrs Pope subjected Luke to less favourable treatment by shouting at him on an occasion, the details of which and the date on which it occurred lack sufficient particularity. The second instance occurred on 25 May 1995 which was the last day on which Luke attended at the school. It is alleged that Mrs Pope treated Luke Demmery less favourably by shouting at him and causing him distress and he was found by his mother after school at the school gate, crouched and sobbing and unable to speak to her. The allegation of direct discrimination is that Mrs Pope treated Luke in this way as she became frustrated because Luke was deaf and was not responding to her instructions in the class on the afternoon of 25 May 1995. It is alleged that the characteristics arising out of Luke's deafness manifested in his restricted communication abilities, delay in learning and general skills in the class room, resulted in Luke being slow to perform his work and triggered the frustration that led to the outburst by Mrs Pope. It is clear that Luke was distressed after he came from the classroom that afternoon. Mrs Dunne, who had taught Luke in year 1 and was familiar with his circumstances, was crossing the playground that afternoon to speak to Mrs Pope. She noticed a group of children outside Luke's classroom. She noticed that Luke was rubbing his eyes and when she looked more closely she saw that he had tears in his eyes and was wiping them with a hanky or a kleenex. Mrs Dunne stated that she went to the group of children and asked Luke what was the matter and he simply replied, "Mrs Pope." Another child immediately said that Mrs Pope had wanted Luke to finish his work. Mrs Dunne stated that she settled Luke down sufficiently to leave him and asked his classmates to wait with him. Mrs Dunne then went into Mrs Pope's classroom and spoke with her about Luke and Mrs Pope replied that Luke had been asked to complete his work before he left the room. Mrs Dunne indicated to Mrs Pope that it would be best for her to speak to Mrs Demmery about the matter. Mrs Dunne and Mrs Pope then had a conversation about the buddy system in which other children supported Luke in his work. Mrs Dunne said that she noticed that the children had moved away from outside the classroom and that she then left the classroom and there were no children standing outside. She noticed that there was a large group of children standing at the gate and there were some parents at the gate. She did not notice Mrs Demmery. Mrs Demmery deposed that when she went to pick up Luke from the school that afternoon she could see Mrs Clenton standing at the entrance of one of the classrooms. "She appeared to be looking at me and at Luke. I could see Luke sitting crouched and sobbing on the ground near the school entrance. I said to Luke "What happened? Come up and we'll see Mrs Pope." Luke did not say anything. He just shook his head. I saw that Robyn Pope was leaving the school and decided not to approach her. I took Luke home. When we got home, Luke did not go into the house. He sat on the verandah and appeared to be quivering. My husband and I decided not to return Luke to the school until our concerns about Luke's welfare had been satisfactorily addressed." In her evidence, Mrs. Demmery stated that when she met Luke at the school gate and asked him what was the matter, another child said "Mrs. Pope yelled at Luke because he spoke to the boy next to him". The boy then ran off across the street to his mother's car before Mrs. Demmery could question him. Mrs Demmery also deposed that on 4 June 1996 she and her husband were collecting material to present to their solicitor and when looking at some of Luke's books from the school, Luke said, "Mrs Pope. A bad woman. Criminal. She banged very hard, tissues on the table." Mrs Demmery said, "She banged scissors on the table?" Luke replied, "No." He got up and went over to the shelf, picked up a box of tissues, brought them back to the table and banged them down on the table. Luke then said to the effect, "Mrs Pope was shouting." Her husband said to Luke, "Where was she when she was shouting? How far? Was she this far?" and he held his hand at arms length from his face, "Or this far?", and he held his hand about half an arm's length from his face. Luke said to the effect, "No, this far", and held his hand in front of his nose, touching the tip of his nose. "We were looking at the entry for 9 May 1995. My husband said to Luke to the effect, "Are you sure it was that day, because the school says that Mrs McInally was the teacher that day." Luke said, "No, Mrs McInally. Mrs Pope." Luke repeated a number of times, "A wet(sic)." My husband and I continued to talk to Luke about his school books. Luke made a reference to colouring in, and said to the effect, "Too slow. Only one person inside little lunch. One person. Luke." Mrs Pope's evidence of the circumstances on the afternoon of 25 May 1995 was that she gave a detailed story writing lesson and the children were asked to copy from the board a heading and sentence and to complete the story on their own involving another two or three sentences. She then moved around the classroom to assist individuals as needed. She deposed, "I went back to my table to conference those children who had now completed their short story. This occurred for about ten minutes before I moved around the room again to assist and encourage children to complete the exercise. I then noticed Luke had not even completed the first instruction of copying the story heading and first sentence off the board (which was well within his capabilities). I then said to Luke words to the effect, "You can do it Luke! It's not difficult, try!" I made similar comments to other class members at the same time." Mrs Pope continued, "I then returned to my desk. It was about 2.45pm, about ten minutes before the end of the school day. I was then informed that Luke was crying by one of the other students. I asked him to get a tissue which he didn't do. He was looking at me and I believe he had heard what I said. I got him a tissue and then prepared the class to pack up in readiness to go home. I felt I could not do anything more and thus, let them go. When I dismissed the class I knew his parents picked him up and would be able to care for him and would approach me about why he was crying. However, they did not come back to the classroom." Mrs Pope further deposed, "I do not know what made Luke cry as the work assignment was within his ability if he directed his mind to do it. I was aware that Luke had himself been away from school because of illness or operative treatment for ten days in total between 13 April 1995 and 16 May 1995. Whilst Luke had not previously cried in my presence Mr Thurston had told me that Luke had cried to get out of work in the past and accordingly on this occasion I did not assess the situation as serious." In evidence, Mrs Pope elaborated further on her conversation with Luke. She said, "Well I looked at him and I said, "Oh. You know Luke it's okay. You know just the heading and the first sentence is all that I'm asking. You know everybody else is having a go." I said, "You know, go and get a tissue and it will be all right." To my recollection, I'm not exactly a hundred per cent sure of my exact words but I did I think offer him encouragement that, you know, the task was not too difficult and "You can manage it, you can see the board" and then I didn't want to brew on it, I didn't want to make it a big episode in the class because if a child's crying, the last thing you want is everybody in the class to be looking at them, makes them more self-conscious, so I thought I had addressed that problem and then I went back to looking at the work of the children at my desk". Mrs Pope further stated, "Well we were so close to the end of the day there wasn't much time to observe anything. Before I knew it, you know, the bell had gone and everyone was packing up and Luke was still upset and it puzzles me greatly that he was emotional about something that seemed so innocent. But there was very little I could do at that time of the day, the lesson being over, the children packed up, Luke got his things together and he still wasn't very happy and I suggested he go and have a drink of water to make him feel better and everyone went home." Mrs Pope then further stated, "Nothing else happened that afternoon. I thought the parents might approach me about it because he was still, you know, visibly upset, but I don't know if it was just the task alone that had caused him his anxiety because the task set was not difficult for him. So I don't know why he was so distraught or upset by what I had requested of him, so maybe there was some more to him or there was more going on in his head than what I knew. I really had no idea, but I expected the parents to turn up and I didn't see them and then I expected the parents maybe to see me the following week to sort of ask what happened, but all that happened was that I had the principal and the assistant principal approach me the next morning asking what had happened and I never saw the parents once about that particular problem." In cross-examination Mrs Pope stated that she had organised for Luke to move from the back to the front of the classroom so that he could be closer to her and she could keep an eye on him and that it might assist him with his hearing difficulties if he was closer to her. Mrs Pope also said in cross-examination that she did not consider that Luke had refused to do the task. "It was just taking him too long to do. Ten, fifteen minutes to write a heading and the first sentence is just not utilising your time efficiently, and all lessons run to time, so, you know, when I'm asking Luke to, you know, have a go and get a bit of a wriggle along, it's because the lesson only goes for so long. So let's get it done." At about 3.30pm that afternoon Mr Demmery phoned Mrs Thew. Mrs Thew made detailed notes of the telephone conversation. In cross-examination Mr Demmery was taken through the details of the notes of Mrs Thew and he agreed with the contents of the note. Mr Demmery was angry because of the condition of Luke when he was picked up at school by Mrs Demmery. Mr Demmery told Mrs Thew that he had heard there was serious disruption in Mrs Pope's classroom, that there was uncontrolled behaviour, that the teacher was always crying and breaking down and that the students were always crying. Mrs Thew told Mr Demmery that her observations did not support this statement. Mr Demmery repeated the accusations that had been conveyed to Mrs Demmery by Mrs Chivers. The notes are extensive and cover the wide range of complaint and dissatisfaction of Mr Demmery, with the conduct of the school towards Luke. Mr Demmery's complaints ranged over a wide range of events during Luke's schooling, for example he raised an event that occurred in Mrs Dunne's class in 1993 when, in the course of an interview, Mr Demmery alleged that Mrs Dunne said, "You are not wanted here, it jeopardises Luke's development of independence." Mr Demmery agreed that he said that the school had never wanted Luke, opposed his enrolment and was seeking to push him out, blaming his family for his problems. Mrs Thew told Mr Demmery that she would need to investigate the matter and discuss it with Mrs Pope. Mrs Thew saw Mrs Pope the following day and made the following note. "Mrs Pope was asked if she was aware that Luke Demmery had left the school upset yesterday. She replied "yes" and that she had looked out for his mother after school to talk to her about it. She had remained behind in her classroom in case Mrs Demmery called in. "Mrs Pope explained that Luke had worked very well in class on Thursday, particularly in mathematics. In the course of the afternoon the class had jointly written a story which was put on the blackboard. The students were requested to transcribe this into their books. While checking on the children's progress on this task Luke had made little progress. When encouraged to complete the task, Luke burst into tears. He refused to take a tissue or be consoled by his teacher." Following the meeting with Mrs Pope on 26 May 1995 Mrs Thew wrote to Mr Demmery a letter in which she repeated the last paragraph of her note of her conversation with Mrs Pope. At approximately 7.30 on the night of 25 May 1995, Mr Demmery phoned Mr Thurston. They had an acrimonious conversation brought about by Mr Demmery's accusation that Mr Thurston was not providing adequate support to Luke. It is clear that the state of emotional stress experienced by Luke Demmery on the afternoon of 25 May 1995, was the culmination for Mr and Mrs Demmery of increasing concern and frustration for Luke's well-being and progress. They were well aware of the changes in class teachers in the year 2/3 class. They were aware that concerns had been expressed in recent weeks about Luke's psychological condition and the degree with which he was coping with the increased pressures in his first year in primary school. His parents had received the report of the CCIC at the time when Luke visited the centre to be fitted with the Spectra 22 processor. "He presented as withdrawn, eye blinking and twitching and appeared quite distressed. He was in his own world." Luke had been kept away from the school for two weeks after the Easter break when his parents gave him home education. At the review meeting on 22 May 1995 the meeting discussed the concerns of the school about Luke's psychological condition and Mrs Demmery agreed to have a psychological assessment made. The Tribunal is not able, from the evidence, to determine the degree of emotion in the attempt by Mrs Pope on the afternoon of 25 May 1995, to encourage Luke to complete the task that he had been allotted. His classmates had completed the task at that time. Mrs Pope considered that the task was well within Luke's capability. She attempted to persuade him to make an extra effort to complete the task. Luke did not respond and became emotionally upset. Mrs Pope acknowledges that she attempted to comfort Luke and to offer him a tissue. It is suggested that Mrs Pope was unduly emotional in her attempt to persuade Luke to complete the task and Luke's emotional distress which continued outside the classroom, constitutes less favourable treatment on the ground of his disability and that it is unlawful under the provisions of s 49L of the Act. In the view of the Tribunal, the evidence does not establish that the attempt by Mrs Pope to have Luke Demmery complete the task allocated to him and to the rest of the class on this occasion, was the cause for Luke's distress. His general psychological and emotional state, caused by factors extraneous to the circumstances in the class room on that afternoon may have led to his distress when he was unable to fulfil the task required of him. Mrs Pope's encouragement to him, vigorous though it was, was not necessarily, in the opinion of the Tribunal, the real cause of his outburst and distress. There is no evidence which would justify the Tribunal to conclude that Mrs Pope's attempt to have Luke complete the task in the way that she did, was related to the fact that Luke was deaf. The Tribunal is entitled to infer that less favourable treatment, if established, is based on the disability of the Complainant, if the nature and circumstances of the treatment was such that it is inescapable that the disability of the Complainant was causally connected with the treatment: Chesson V Duxton (1990) EOC 92-295. The issue does not arise in this instance as the Tribunal is not satisfied on the evidence that Luke suffered less favourable treatment when compared to the manner in which the other children in the class were dealt with, and in addition, there is not sufficient evidence that the conduct of Mrs Pope that is complained about, leads inescapably to an inference that the conduct was based on Luke's profound deafness. In relation to each of the claims of direct discrimination, the Tribunal finds that those complaints are not substantiated. ALLEGATIONS OF INDIRECT DISCRIMINATION To constitute indirect discrimination on the ground of disability, it is necessary for the Complainant to satisfy the Tribunal that the following four factors are established: 1. The existence of a requirement or condition. 2. The identification of a substantially higher proportion of persons who are not profoundly deaf and who are able to comply with the requirement or condition. 3. The requirement or condition is not reasonable having regard to the circumstances of this case. 4. The Complainant is not able to comply with the requirement or condition. If the Tribunal is satisfied on these factors, the discrimination is rendered unlawful under section 49L(2) of the Act if the Respondent denied to Luke Demmery any benefit provided by the Respondent or subjected Luke Demmery to any other detriment. In considering whether the Respondent denied any benefit to Luke Demmery it is necessary under subs (5) of s 49L of the Act to consider whether because of his disability the benefit is required to be provided in a special manner and the benefit could not be provided by the Respondent without unjustifiable hardship. It is clear from the evidence that the Complainant does not raise an allegation of indirect discrimination against the Respondent arising out of the first three years of the integration of Luke Demmery into the Kendall Public School. It is also clear that the Complainant does not criticise the policies of the Respondent relating to the integration of disabled children into a normal school setting. The allegation of indirect discrimination is confined to consideration of the conduct and practices of the Respondent in the application of its policies at the Kendall Public School in relation to Luke Demmery in the year 2/3 composite class in 1995. It is alleged that the conduct and practices of the Respondent resulted in the creation of requirements and conditions that Luke Demmery could not comply with, that students who aren't deaf could comply with and that the requirements and conditions were not reasonable. It is conceded that the level of additional support in terms of the hours of teacher's aide (special) and itinerant support teacher (hearing) was sufficient to meet Luke's educational needs at the school. The complaint alleges that the school failed to make adequate use of the additional support available to Luke; that the conduct and practices of the school and the Respondent reduced or limited the benefit to Luke of the additional support; and the conduct and practices of the school and the Respondent had the effect of limiting or reducing the prospect of Luke's successful integration into the school and the mainstream classroom setting. At the beginning of term one in 1995, a casualteacher, Mrs Clenton, was appointed on a temporary basis as the class teacher. Mrs Clenton considered that her appointment was temporary, for a period of approximately four weeks, until she was required to relieve in another class in which the teacher would commence maternity leave. Mr Pleasance, the assistant principal, who was responsible for teacher allocations in the school, considered Mrs Clenton's appointment was indefinite, pending the appointment of a permanent teacher to the year 2/3 class. In fact, Mrs Pope was appointed as the permanent teacher of that class from the 28 March 1995 so Mrs Clenton's expectation of a short period was realised. The Tribunal is satisfied that Mrs Clenton's description of her appointment to the year 2/3 class is more accurate of the arrangement that was made at the beginning of the first term of 1995. The abrupt arrangements made with Mrs Pope to transfer on short notice from her position as a teacher at the Kensington Public School to the Kendall Public School, is consistent with an intention at the Kendall Public School to reduce the period of a temporary teacher to as short a period as possible. This Tribunal recognises that Kendall Public School had the additional incentive to appoint a permanent teacher to the year 2/3 class in order to allow Mrs Clenton to replace Mrs Hewes when she commenced maternity leave. The core of the criticisms of the Complainant of the inadequacies of the arrangements made by the Kendall Public School to accommodate the special needs of Luke Demmery in the year 2/3 class can be summarised as follows: . the failure to appoint a permanent teacher to that class at the commencement of term one, 1995, . the appointment at the beginning of first term, 1995, in the year 2/3 class of a teacher's aide, Mrs Dewar, a person who had no prior experience in the role, . the assumption from the beginning of term one, 1995, by the itinerant support teaching (hearing), Mr Mark Thurston, of responsibility for the Individual Education Program for Luke Demmery in year 2/3 class, . the accommodation of the absences of Mrs Pope after her commencement as teacher of the year 2/3 class on 28 March 1995 by a number of casual relief teachers, some of whom took the class for only one or two days. The details of the temporary arrangements made for the teaching of the class during these periods has been set out earlier. 1995 was a critical year for Luke Demmery in a number of respects. It was a major educational step for Luke to make the transition from year 2 to year 3. In August 1994 his mother gave birth to another brother. In August 1994 the 24 months review of Luke's progress was conducted by the CCIC and the report included the statement that "it is evident that Luke has made minimal progress over the last year. His language comprehension has remained around the same four year level while expressive language is functioning below this level. Luke's speech has improved at a reasonable rate but remains moderately unintelligible. These results imply that future educational options for Luke must take into account his severe language delay." Mrs Demmery did not fully accept the conclusions of that report. She participated in the decision for Luke to progress in 1995 to the year 3 level. On 18 April 1995, during the vacation, Luke was fitted with the new Spectra 22 speech processor at the CCIC. The report from that centre at that time states, "He presented as withdrawn, eye blinking and twitching and appeared quite depressed. He was in his own world." Mr and Mrs Demmery kept Luke at home from the beginning of second term 1995, for a period of two weeks and when Luke returned to the school on 8 May 1995, Mrs McInally was the relief teacher and continued, except for one day only as the class teacher, until 23 May 1995 when Mrs Pope was able to resume as the permanent teacher of the class. The problem, described earlier, which led to Mr and Mrs Demmery withdrawing Luke from the Kendall Public School, occurred on 25 May 1995. It is clear that a deterioration occurred in Luke's progress during terms one and two in the year 2/3 class in 1995. The deterioration affected Luke's ability to respond to the requirements in class and to his participation in sport and class presentations and assemblies. He was also adversely affected in his psychological development. This was brought to his parents attention at the review meeting on 22 May 1995 and Mr Thurston states that he also mentioned his concerns to Mrs Demmery prior to that meeting, although she denies that this happened. The Tribunal is not satisfied that this deterioration is attributable to the events and circumstances arising from the alleged failures of the school which are the subject of the complaint. There is a lack of any medical or psychological evidence which would enable the Tribunal to attribute the deterioration in Luke's condition and his attitude and approach to participation in the class, to one cause or to another. There is a substantial and significant void in the evidence to connect Luke's emotional condition with the factors which the Complainant requires the Tribunal to assume were the cause of the deterioration in Luke's condition which finally led to his emotional reactions on 25 May 1995. The evidence of Dr Giorcelli, an educational expert, contained criticisms of some aspects of the way in which the Kendall Public School approached the implementation of the Respondent's integration policy in 1995 in relation to Luke. Dr Giorcelli described a series of principles which represent the ideal mechanisms for implementing those policies. She and Dr Leigh, had some differences about the extent and effect of the implementation of the integration policy at the school in 1995. Neither expert was in a position, nor was required, to express an opinion on the actual effects on Luke Demmery of any inadequacies arising out of the school's conduct and practice in relation to Luke Demmery in 1995. The Tribunal is left with the task of pronouncing, in the context of the allegation of indirect discrimination under the terms of the Act, on the adequacy of the provisions made at the school in 1995 for the continual integration of Luke Demmery into that school. The claimant has specified eight alternative requirements or conditions which arise out of the cumulative effect of the alleged failures by the school to adapt its conduct and practices to accommodate the special demands created by the integration of Luke into the school, in order for him to enjoy access to the same opportunity as other children in the school to develop his educational potential. The failures of the school, it is submitted, arise from the evidence of Dr Giorcelli and her statement of the list of principles which she considers constitutes the ideal conduct and practices for the successful integration of a child such as Luke. The Complainant seeks to demonstrate from the list of principles and the comparison with the steps taken by the school in relation to Luke in 1995, that the school was inadequate in its approach at that time to the integration of Luke. The Complainant then seeks to identify the requirements or conditions which the Respondent required Luke to comply with and with which he was unable to comply:- 1. that Luke be capable of unaided hearing. 2. that Luke be capable of receiving and understanding sound information across the range of human speech. 3. that Luke not have a cochlear implant. 4. that Luke not be delayed in his development of speech, language and communication skills. 5. that Luke be able to cope well with unexpected changes in routine. 6. that Luke be able to learn when other children in the class behave disruptively. 7. that Luke be able to learn in spite of experiencing ten changes in class teacher involving six different teachers over a period of two months, and 8. that Luke be confident and self-reliant. The approach adopted by the Complainant in determining and formulating these requirements or conditions is curious. It is submitted that in this case it is appropriate in formulating the requirements or conditions, to first have regard to the overall situation of the potential for indirect discrimination to be made out and, in the light of the whole material, to look at the situation in reverse, and determine what requirements or conditions would give effect to that potential. This requires the most subjective test. A test described by the Respondent as applying hindsight vision. The Tribunal does not accept that this is the correct approach, particularly in this case where the resultant requirements and conditions, in a number of instances, are unrealistic, and contrary to the evidence. A more objective approach should be taken, in the light of the evidence, to support the reality of the imposition of a requirement or condition such that it will support the establishment of a claim of indirect discrimination. It is necessary to examine each of the requirements or conditions relied on by the Complainant, to determine whether the evidence, examined objectively, supports the proposition that in the circumstances of this case, the Respondent, through the actions undertaken at the Kendall Public School in 1995, required Luke Demmery to comply in order to maintain an enrolment in the year 2/3 class. 1. "that Luke be capable of unaided hearing." It is undisputed that Luke Demmery is a profoundly deaf child. Considerable negotiation took place between Luke's parents and the school and the Respondent to obtain the appropriate funding and support for Luke's admission to the school and his continued integration into the school. It would fly in the face of the efforts that have been made, to accept that in 1995 the circumstances had so changed that the school and the Respondent no longer accepted that Luke be enrolled and treated as a disabled student. The evidence is to the contrary. 2. "that Luke be capable of receiving and understanding sound information across the range of human speech." This proposition is also contrary to the evidence which clearly shows that the school made special arrangements for extra support for Luke during 1995 on similar terms to the support provided in the earlier years. Specifically, the allegation that the incident involving Mrs Pope in the classroom on 25 May 1995, in which she is alleged to have shouted at Luke and expected him to respond to the lesson in a manner similar to the children without disability, is for the reasons previously given, in the view of the Tribunal, not sustained. In the circumstances of this complaint, to rely on one instance even if it was established, would not, in the view of the Tribunal, be sufficient to sustain the proposition that the school imposed a requirement or condition of the nature alleged. 3. "that Luke not have a cochlear implant." This also is contrary to the evidence of the steps taken by the school to facilitate Luke having the operation for the cochlear implant and his subsequent attendances for habilitation and mapping to the process of adjustment to the cochlear implant. This requirement or condition is not established. 4. "that Luke not be delayed in his development of speech, language and communication skills." Again, the evidence does not support this proposition. The fact that special resources and support were provided to Luke and to his class in 1995, on a similar basis to the earlier years, clearly demonstrates that the school was responsive to the need to support Luke in the development of his hearing skills. The efforts by Mr Thurston in particular to assist Luke in this development clearly demonstrate that such a requirement or condition cannot be sustained. 6. "that Luke be able to learn when other children in the class behave disruptively." This proposition fails for want of evidence that Luke was subject, in the class, to disruptive conduct by other children. 8. "that Luke be confident and self-reliant." This proposition also fails for lack of evidence to support the proposition that the school had an expectation that Luke be confident and self-reliant. The evidence is clear that Luke lacked confidence and self-reliance. This was evident to all those with whom Luke came in contact at the school. An objective assessment, does not sustain this proposition. This then leaves two items of the list of requirements or conditions which require close examination. 5. "that Luke be able to cope well with unexpected changes in routine." 7. "that Luke be able to learn in spite of experiencing ten changes in class teacher involving six different teachers over a period of two months." There is some similarity in the concept of each of these items. Both involve consideration of the expectation that Luke be able to deal with the events that occurred in terms 1 and 2 in 1995. For item 7 to be accepted, it is necessary to presuppose that the school should have anticipated and made special provision to accommodate Luke's special needs during the unexpected periods of Mrs Pope's absences either on sick leave or for the three days to effect her accommodation requirements following her transfer from Kensington Public School to Kendall. The latter could have been anticipated by the school but it is not clear what special arrangements, in the circumstances, could or should have been made to protect Luke from any disruption in his routine. The Complainant agrees that the unexpected sicknesses of Mrs Pope could not have been anticipated by the school. For these occasions a requirement or condition of the nature suggested is not appropriate. The three days for transfer leave, although reasonable for the school to anticipate, is in the circumstances not abnormal in the exigencies of the school program. Where these situations occur there will, in the normal course of events, be a need for a casual relief teacher to take charge of the class. In the process of integration, a disabled child must expect that there will be normal disruptions to routine arising out of such events. To elevate a break in the learning process of Luke during this three day period, to a requirement or condition with implications of discrimination, is not sustainable. This then leaves consideration of item 5 "that Luke be able to cope well with unexpected changes in routine." Of all the items of requirements or conditions, proposed by the Complainant, this item is the most capable of being sustained. Both Dr Giorcelli and Dr Leigh agreed that it is important in the process of integration in an ordinary class that a disabled child has the least disruption in routines. This is especially the case of a profoundly deaf child. Dr Giorcelli was more adamant than Dr Leigh that the allocation of a temporary teacher to the 2/3 year class at the beginning of 1995 was likely to cause some disruption to that class when the permanent teacher was appointed. Both experts agreed that it would not be in the best interests of Luke that this should occur. Dr Leigh considered that it was understandable that in some circumstances a school could find itself in a situation where it had little choice but to proceed on a basis of a temporary teacher and, like the other children in the class, Luke would have to make an adjustment when the permanent teacher was appointed. Dr Giorcelli found this less acceptable but did not completely rule out the possibility that a school, in the circumstances of Kendall Public School, may have little choice but to appoint a temporary teacher to Luke's class at the beginning of the year. The experience of Luke in his classes in 1993 and 1994 showed that he responded better when his school routine was uninterrupted. In both years he had the same teacher's aide, Mrs Smallwood, and Mr Mark Thurston continued throughout the whole of Luke's school as his itinerant support teacher. In 1995 the Luke's regular routine was potentially at risk by the appointment of a temporary teacher and was exacerbated by the appointment of a teacher's aide special who, at the beginning of the year had had no previous experience in that capacity and had no special training in providing assistance to a disabled child or in particular, to a profoundly deaf child. From the beginning of 1995 Mr Thurston took over the responsibility for the Individual Development Plan of Luke when the Respondent's policy described the class teacher as responsible. The evidence was insufficient to demonstrate that the failure to follow policy in this instance had a detrimental effect on Luke's development but the cumulative effect of a temporary teacher, the inexperienced special aide teacher and the more direct involvement of the itinerant support teacher indicates that the management of the school adopted a riskier approach to the resourcing of Luke's class than was adopted in the earlier years of his education at the school. The degree of the additional risk in this approach adds support to the Complainant's proposition that the school had an expectation, unintentional although it may have been, that Luke be able to cope with the changes in routine that may occur as a result of the resourcing of the year 2/3 class in 1995. The Tribunal accordingly considers that the Respondent, through the management of the Kendall Public School, did impose a requirement on the enrolment of Luke in the year 2/3 class in 1995, that he be able to cope well with unexpected changes in routine. WAS THE REQUIREMENT REASONABLE? To support a claim of indirect discrimination the Complainant must satisfy the Tribunal that if the Respondent has imposed a requirement on the disabled person, that the requirement is not reasonable in the circumstances of the case. The question of reasonableness in this context has been examined in a number of decisions. A useful summary of the decisions has been given recently by the Human Rights and Equal Opportunity Commission in Finance Sector Union v Commonwealth Bank of Australia (1997) EOC 92-889. The decision reviews previous deliberations on the question of reasonableness in a context similar to s. 49B(1)(b) of the Act. "We note that Waters does not contain any simple, convenient exposition of "reasonableness" or how reasonableness is to be assessed in the context of indirect discrimination. Nor could it have, given the variety (1) Human rights and discrimination legislation ought to be liberally construed. (2) The meaning of reasonableness in general terms should be informed by the objects and purposes of the Act, while the consideration of reasonableness in any given situation should include an assessment of whether a Respondent's conduct was logical and understandable. We recognise that, in accordance with the guidance provided by Sheppard J in Dopking, this principle must be applied so as not to skew our objective assessment of reasonableness. (3) There should be a demonstrated nexus between the requirement or condition and the activity to be performed. (4) The requirement or condition should be appropriate and adapted to the activity in question and further, it may be that an alternative requirement or condition could have avoided or ameliorated the disadvantage experienced by the Complainant. (5) The Styles balancing test applies, and so all the relevant factors and circumstances must be weighed including factors favouring the Respondent. These may, depending on the context, include financial considerations, alternative approaches, industrial relations, commercial competitors, occupational health and safety requirements, efficiency and the like. (6) Reasonableness is a question of fact." Waters suggests to us that if the justification for a disputed requirement or condition is rational or understandable, this is nevertheless no more than a factor to be considered in an assessment of reasonableness. It is not determinative in itself. The High Court read into "reasonable" (as used in the Victorian legislation) - "reasonable in all the circumstances" - which is very similar to the wording in the Act. This indicates that a broad approach must be taken in examining all relevant factors surrounding a disputed requirement or condition." The commission also made this comment about the decision of Dopking. "In his judgement, Sheppard J considered the factors that determine whether a condition or a requirement may be "reasonable" in circumstances where there is evidence of the existence of a resultant disadvantage. His Honour held that where "the point of distinction which has been adopted has a logical and understandable basis" it will be within "bounds of objective reasonableness". This, as his Honour acknowledges, gives significant latitude to a Respondent employer." The decisions in the Finance Sector Union Case and in Dopking related to claims of indirect discrimination in the context of employment. The Tribunal considers that the matters of principle stated in those decisions is apposite to claims of indirect discrimination in the context of education as in the present complaint. The Tribunal has approached its consideration of the question whether the requirement imposed by the Kendall Public School for the admission of Luke Demmery to the year 2/3 class in 1995, was reasonable, on the basis of the principles enunciated by the Human Rights Commission in the Finance Sector Union case. In particular, the Tribunal has had regard to the question whether the Respondent's conduct was logical and understandable. There is some conflicting evidence as to the time at which the management at Kendall Public School first became aware of the need to replace in 1995 the teacher who decided to retire prior to the commencement of the first term 1995. There is evidence that except for the year 2/3 class, each of the other classes at the school from kindergarten to the composite 5/6 classes had permanent teachers allocated at the beginning of 1995. It was submitted that in these circumstances it was open to the school to allocate from one of the other classes a permanent teacher to the year 2/3 class to ensure that Luke Demmery had a permanent teacher in that class throughout 1995. This would mean that one of the other classes would commence with a temporary teacher in 1995. This question was not pursued in evidence. The Tribunal is left with an inconclusive view of the choices available to the management of school in the allocation of teachers in the 1995 year. The evidence is not sufficient to enable the Tribunal to reach a conclusion on the feasibility of a rearrangement of the teaching programs at the beginning of that year to avoid a temporary teacher in the year 2/3 class. The choice of Mrs Clenton as the temporary teacher for the year 2/3 class in 1995 seemed satisfactory. The Complainant has no criticism of Mrs Clenton as a teacher of the class. Although Mr and Mrs Demmery complained that they were not consulted about the arrangements made for the resourcing of the class in 1995, Mrs Demmery stated that in fact they "loved her" when referring to Mrs Clenton's conduct of the class and her management of Luke. The integration of a disabled child including a profoundly deaf child into a normal class setting of a school, must require a degree of acceptance that the child will be subjected to the usual exigencies that flow from the school setting. The circumstances that faced the management of the school in January 1995 is not extraordinary. Schools must be expected to have to make last minute arrangements to meet sudden and unexpected loss of teaching personnel. A disabled child, such as Luke, as part of the normalisation process of integration, may reasonably have to expect to be involved in a situation where a temporary teacher has to take over his class pending the appointment of a permanent teacher. As the experts have stated, this is not an ideal situation. It is not ideal for a child without disability and especially it is not ideal for a child with a disability such as Luke. To determine in a context of a claim of indirect discrimination, that based on the ideals of a preferred situation, that a school such as the Kendall Public School in a more isolated community, was unreasonable in filling, at a late hour, a vacancy in Luke's class with a temporary teacher, is to place too high and unrealistic, a standard for the implementation of the integration policies of the Respondent. Luke's parents made the choice of selecting the area in which they would reside and the school at which they required Luke to be integrated in a normal school setting. That was the choice that was open to them and they were entitled to expect that the Kendall Public School and the Respondent would implement the established policies of integrating a disabled child into the school. For the reasons expressed earlier, the Tribunal is not satisfied that the causes of Luke's deterioration were attributable to the disruptions which he experienced as a result of the appointment of a permanent teacher in March 1995. There were other possible causes or contributing factors to Luke's condition, factors extraneous to the requirement that Luke be able to cope well with a change in routine. After taking all these factors into account, the Tribunal considers that it was not unreasonable in the circumstances for the management of Kendall Public School to require Luke to cope well with unexpected changes in routine in 1995, arising out of the appointment of a temporary teacher to his class. The unexpected changes to routine flowing from the various changes in teachers occurring after the appointment of Mrs Pope were beyond the reasonable expectation of the school, and the arrangements that the school made to cope with the situations were reasonable and appropriate in the circumstances. Despite Luke's considerable disability, as a student in a normalised integration program, the expectation that he be able to cope with changes in routine flowing from these exigencies, was not unreasonable. The evidence does not establish that the particular deteriorations in Luke's condition which culminated in the unfortunate emotional reaction on 25 May 1995, was attributable necessarily, to the requirement that he be able to cope well with unexpected changes in routine. CONCLUSION These reasons have dealt with the various claims of direct discrimination and indirect discrimination that arise out of the complaint. In each instance, the Tribunal finds that the complaints are not substantiated. Accordingly the Tribunal orders that the complaint be dismissed. There will be no order as to costs. 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.