Q&As

School's Role in Managing Student Disabilities

Thursday October 13, 2016

 

Aaeaaqaaaaaaaawuaaaajdcwmjcyytk1lwezyzktndm0yi05zwm4lwy4ytyzmmexzwyzmwElizabeth Aitken is an Executive Committee Member of the LIV WorkplaceRelations Section. She was also awarded ‘Young Gun of the Year’ at the Australian Women in law Awards 2015.

Elizabeth joined Tori Smith of Legalwise Seminars to discuss the school's role in managing student disabilities. You can find the transcript of the Q&A below.

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What are my school’s legal responsibilities to students with additional learning needs (ALN)?

A range of legislation and standards regulate the provision of educational services to ALN students. These include the Disability Discrimination Act 1992 (Cth), the Disability Standards for Education 2005 and the Equal Opportunity Act 2010 (Vic). In summary, these laws and regulations generally require education providers to:

  • Consult with ALN-affected students (or their parents/guardian) regarding their ALN requirements

  • Identify if an adjustment is required to assist an ALN student to participate in Educational activities

  • Consider whether the adjustment is reasonable and/or does not impose unjustifiable hardship on the school

  • Make the adjustment

 

Are there any circumstances in which a school is not required to provide adjustments?

Yes. There is no obligation for a school to provide adjustments to a student with ALN if an exception applies at law, including that:

  • The adjustment is not reasonable

  • The adjustment is reasonable but would nevertheless impose unjustifiable hardship on the school

 

How can a school determine if an adjustment is “reasonable?”

The law and regulations generally require education providers to make reasonable adjustments where necessary for the participation of an ALN student it its programs. However, it is also anticipated by the law that there will be possible adjustments which are not reasonable. There is no requirement on a school to make unreasonable adjustments.

In determining whether an adjustment is reasonable, the following factors may be considered:

  • The student’s disability

  • The views of the student during any consultation process

  • The effect of the adjustment on the student, including the effect on the student’s:

    • Ability to achieve learning outcomes

    • Ability to participate in courses or programs

    • Independence

  • The effect of the proposed adjustment on anyone else affected, including the education provider, staff and other students

  • The costs and benefits of making the adjustment

 

How can a school determine if a reasonable adjustment would impose “unjustifiable hardship”?

An education provider is not required to make a reasonable adjustment if it would nevertheless impose “unjustifiable hardship”. In determining whether hardship would be imposed on a person that is unjustifiable, all relevant circumstances must be taken into account, including:

  • Any benefit or detriment likely to be suffered by the people concerned, in particular, the student requiring the adjustment

  • The financial circumstances and expenditure required to support the adjustment

  • The availability of financial and other assistance to the student

In practice, the financial cost of an adjustment is most commonly relied upon by an education provider to demonstrate unjustifiable hardship, being most easily quantified. However, the law imposes positive obligations on education providers to accommodate the requirements of students with additional learning needs. Consequently, an adjustment is likely to be considered reasonable by the courts if the education provider can implement such an adjustment with the incurring of relatively minor expense, and any potential hardship to the education provider must be weighed against the comparative cost or detriment to the student resulting from a refusal to make the adjustment.

 

What should our school do to facilitate the management of additional learning needs?

Every school should have in place policies and procedures which facilitate the management of students’ additional learning needs. The key materials we recommend include:

  • An Application for Enrolment Form which requires appropriate disclosure of disabilities / additional learning needs to assist in the identification and consultation process

  • Terms and Conditions of Enrolment which specify that failure to provide full and accurate information in the course of applying for enrolment may result in refusal or withdrawal of enrolment

  • A Policy for the Management of Students with Additional Learning Needs to assist relevant staff members to assess ALN adjustments

  • An Additional Learning Needs Report for internal use by enrolment and education staff to assist in collating relevant information, directing the consultation process, and assessing the reasonableness of any requested adjustment or hardship. This document should be interactive and allow relevant staff members to add their own observations. It may also include an Individual Education Plan

  • Policies which prohibit discrimination against students and staff members of the school

Schools should also ensure enrolment staff and staff managing ALN student requirements on an ongoing basis have sufficient information and expertise. This may include through the provision of formal training during staff induction and/or ongoing professional development sessions.

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