By Ben Fogarty -
Snapshot
- A recent NSW Civil and Administrative Tribunal decision considered disability discrimination in connection with home assisted education during the Covid-19 pandemic.
- It was held that where the parent is immune-compromised and wished to have the child supported with flexible home learning options, the services were being provided to both the child and the parent.
- In assessing quantum, the Tribunal noted that consideration must be given to ‘community standards [which] now accord a higher value to compensation for pain and suffering and loss of enjoyment of life than before’.
- This appeal judgment is a reminder to education providers of the need to be agile, adaptable and flexible when considering requests for adjustments for disabilities.
In FVN v Secretary, Department of Education [2023] NSWCATAP 301 the Appeal Panel of the Civil and Administrative Tribunal NSW (‘the Tribunal’) allowed an appeal against dismissal of the appellant’s disability discrimination complaint. The Appeal Panel re-determined the complaint and found it was substantiated, awarding $15,000 damages as compensation for non-pecuniary loss or damage.
The appeal is of note to human rights lawyers as the Appeal Panel considered whether:
- the respondent discriminated against the appellant on the ground of disability in declining to provide home assisted education in May 2020, at the height of the Covid-19 pandemic, and
- education services were provided to both the child and their parents within the meaning of s 49M of the Anti-Discrimination Act 1977 (NSW) (the ‘AD Act’).
On both points the Appeal Panel found in the affirmative and for the appellant.
Background
The appellant is the mother of a boy who attended a NSW public primary school from February 2019 to July 2021. She lives with Type 1 diabetes and is immune-compromised. Between 22 March 2020 and 11 May 2020, parents in NSW were encouraged by the respondent to keep their children home from school to contain the spread of Covid-19. The respondent provided assistance to students to continue their education at home, known as ‘flexible home learning’.
On 11 May 2020, the NSW Government declared that students would return to school on a staggered basis and on a full-time basis from 25 May 2020. The respondent’s guidelines at the time allowed students to continue to receive flexible home learning services if a member of the household was immune-compromised, such as receiving chemotherapy, with medical certificates in support.
