Court fight looms over rights of disabled

22:48, Mar 11 2012

Human Rights Commission lawyers have agreed to take up a complaint alleging that state schools are discriminating against thousands of disabled pupils.

The rare step is a significant milestone as IHC seeks a declaration that the Education Ministry and schools are treating intellectually and physically impaired pupils unlawfully.

If IHC is successful, the Government could be found in breach of the Human Rights Act and face orders for compensation.

It is nearly four years since the complaint was first lodged with the commission. The stage is now set for years more legal action and appeals.

IHC claims the state education system is failing pupils with special needs and illegally denying them the right to an education at their local schools.

"These things have happened for so long people have become used to them," IHC advocacy director Trish Grant said. "We're saying, `This is discrimination – discrimination is not OK in law, policy or practice'."


The Office of Human Rights Proceedings has found the ministry has a case to answer.

Wellington woman Vanessa O'Sullivan is among thousands of parents potentially affected by the case.

Her son James, 9, has an intellectual disability and is also autistic. She says he has been turned away from schools because of his disability and denied access to school camps and activities unless she personally funded a helper.

Her other son, Trent, 12, is also autistic and has dyspraxia, which affects motor skills. "I got a call from a principal saying he'd be better at another school and the fit wasn't really there. My son wasn't good enough for them.

"I was so angry. It makes you feel hurt."

Mrs O'Sullivan, 42, and her ex-husband spent at least $100,000 on therapy, aides and resources for James to give him the best possible chance at life.


She said battling the system to advocate for her son was exhausting but she refused to give up.

The Office of Human Rights Proceedings, which is an independent arm of the commission headed by former judge Robert Hesketh, will now provide free legal representation to argue IHC's complaint before the Human Rights Review Tribunal.

Statements of evidence are due to be filed by June and a hearing is likely next year.

The office had to weigh the level of harm, public interest, the number of people affected and whether the issue would advance case law around discrimination issues.

About 45,000 schoolchildren have special education needs.

Ms Grant said thousands of disabled children faced daily unlawful conditions or effective bans, denying them the same access to the curriculum as other pupils and isolating them from classmates.

"Having to fight for your children's right to be in school and get a fair deal is not something that other parents have to experience. It's exhausting, it's frustrating, it's scary, it impacts on every aspect of families' lives."

IHC had a huge body of evidence detailing the discrimination, including dozens of affidavits by parents, principals and school boards. It was also lining up expert witnesses and academics from New Zealand and overseas.

Although the law gave every child the right to enrol at their local school, government policies and school practices "don't guarantee the full enjoyment of that right for many children".

Documented discrimination included:

Conditions limiting the hours disabled children could attend class, or pupils being sent home when teacher aides were sick.

Access to extra-curricular activities such as school plays or camps denied because of disabilities.

Parents asked to contribute financially to keep their disabled children in mainstream classrooms.

Suspension for disability-related behaviour, not misconduct.

IHC is prepared for a long legal fight, which the ministry is expected to defend.

Human Rights Commission spokesman Gilbert Wong said that if IHC was successful, the tribunal could make a declaration of "unjustified discrimination".

Although a declaration carried no binding legal authority, "clearly the Government doesn't want to be doing something that's against the law".

A similar finding against the Health Ministry over the right to payment for family caregivers of disabled children is awaiting an Appeal Court decision.

Education Ministry special education deputy secretary Nicholas Pole said the Government was committed to ensuring every child had the rights to enrolment, attendance and full participation at their local school.

The ministry had reviewed support for students with disabilities in the school system since the IHC complaint was lodged in 2008.

It had also written to every school reminding them of their obligations to teach all children.

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