Scott and Bernadette Finney on behalf of Scarlett Finney v. The Hills Grammar School

IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992 (CTH)

JUDGE: GRAEME INNES

No. H98/60

Number of pages - 41

DATE OF HEARING: 17, 18 and 27 November 1998; 1 and 3 December 1998

DATE OF DECISION: 20 July 1999

PLACE: SYDNEY

#DATE 20:07:1999

Appearances:

The Complainants were represented by Mr Nick Poynder, Counsel, instructed by Mr Greg Kirk of the Public Interest Advocacy Centre

The Respondent was represented by Ms Kate Eastman instructed by Ms Jacquie Seemans of Minter Ellison, Lawyers

Unlawful discrimination occurred.

1. INTRODUCTION

1.1       The complaint

This is an inquiry by the Human Rights and Equal Opportunity Commission ("the Commission") pursuant to s.79(1) of the Disability Discrimination Act 1992 (Cth) ("the Act") into a complaint by Mr Scott Finney and Mrs Bernadette Finney, on behalf of their daughter Scarlett, against the Hills Grammar School ("the School").

Mr and Mrs Finney lodged a complaint with the Commission on 1 September 1997 alleging that the School discriminated against Scarlett pursuant to ss.5 and 22(1) of the Act. A conciliation conference on 4 May 1998 failed to resolve the complaint. The complaint was referred to the Commission for inquiry by the Acting Disability Discrimination Commissioner on 18 June 1998 pursuant to s.76(1) of the Act.

1.2       Nature of Scarlett's disability

Scarlett Finney was born on 26 June 1992 and is now seven years old. She was born with a condition known as Spina Bifida.

Spina Bifida is a condition which occurs when at an early stage in the development of a foetus in the womb, some of the spinal bones which normally cover and protect the spinal chord fail to form properly. This results in a break in the spinal column. Where this occurs, the spinal chord and all the nerves attached to it may come out onto the surface and the spinal chord becomes knotted and mangled at the site of the break.

The physical effects of Spina Bifida vary from person to person as the effects are determined by both the severity of the malformation and its location on the spinal column. The physical effects usually include mobility, incontinence and brain fluid circulation problems (known as hydrocephalus), which in turn may lead to learning difficulties.

1.3       Application to the School

On 3 March 1997, Mr and Mrs Finney completed an Application for Enrolment form for the School on behalf of Scarlett and sent the form, together with an application fee of $75, to the Registrar of the School, Mr Nigel Morgan. Attached to the application form was a covering letter from Mrs Finney dated 3 February 1997. In this covering letter Mrs Finney wrote:

"Scarlett has Spina Bifida and requires a school with certain specifications, for example, level walk-ways, grounds, preferably no steps into class rooms etc. wheel chair accessibility."

By letter dated 5 March 1997 Mr Morgan acknowledged Mr and Mrs Finney's application for Scarlett and stated that he would contact them in the near future for an interview.

On 26 March 1997 Mr and Mrs Finney and Scarlett attended an interview with Mr Morgan at the School. At that interview there was a general discussion about Scarlett's needs at the School. Mrs Finney gave Mr Morgan the names of several persons he could contact to find out more about Spina Bifida in general, and about Scarlett in particular.

By letter dated 20 August 1997 Mr Morgan wrote to Mr and Mrs Finney informing them that the School would not be offering Scarlett a place in its Kindergarten class for 1998.

Mr Morgan wrote:

"An important factor in the consideration of each applicant is the ability of the School to meet the special needs of every child, given the level and nature of available resources. Following a thorough examination of Scarlett's special needs and the School's ability to meet them, we do not believe that we have adequate resources to look after her in the manner that she requires and in a way that is suitable for her. It is with great regret that we have reached this conclusion."

2.       THE LAW

Having regard to the nature of the discrimination alleged in the complaint, ss. 4, 5, 11 and 22 (relating to direct discrimination in the area of education) are the relevant provisions of the Act. So far as is relevant, they read as follows:

SECTION 4 - Definitions

"disability", in relation to a person, means:

(a)       total or partial loss of the person's bodily or mental functions; ......

and includes a disability that:

(h)       presently exists; or

(i)       previously existed but no longer exists; or

(j)       may exist in the future; or

(k)       is imputed to a person;

"educational authority" means a body or person administering an educational institution.

"educational institution" means a school, college, university or other institution at which education or training is provided.

SECTION 5 - Direct Discrimination

(1)       For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

(2)       For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

SECTION 22 - Education

(1) It is unlawful for an educational authority to discriminate against a person on the ground of the person's disability or a disability of any of the other person's associates:

(a)       by refusing or failing to accept the person's application for admission as a student; or

(b)        in the terms or conditions on which it is prepared to admit the person as a student. ...

(4) This section does not render it unlawful to refuse or fail to accept a person's application for admission as a student at an educational institution where the person, if admitted as a student by the educational authority, would require services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority.

3.       ISSUES FOR DETERMINATION

It is clear that Scarlett has a "disability" within the meaning of s.4 of the Act. Spina Bifida clearly qualifies as a "total or partial loss of the person's bodily or mental functions" as set out in that section.

It is also clear that the School is an "educational authority" within the meaning of s. 4 of the Act.

It is admitted that Scarlett's disability was one of the reasons for the School's rejection of her application for enrolment in its 1998 Kindergarten class. I find that the paragraph set out above from Mr Morgan's letter to Mr and Mrs Finney dated 20 August 1997 is quite clear on that point. Nor is it argued by the School that by refusing her application, it did not discriminate against Scarlett on the basis of her disability.

Rather, the School seeks to rely on the exception afforded under s. 22(4) of the Act. Accordingly, the majority of the evidence given in this matter by both parties concerned whether the provision of services or facilities required by Scarlett to attend the School would impose "unjustifiable hardship" on the School.

4.       EVIDENCE OF THE PARTIES

4.1 Evidence for the Complainants

4.1.1 Evidence of Ms Scarlett Finney

The Complainants' representative made an application that Scarlett, who was aged six at the time of the hearing, should give evidence relating to her feelings when she was told of the School's decision. The Respondent challenged her competence to give evidence. After asking her several questions relating to her disability, and the limitations it placed on her in the playing of sports and games, I was satisfied that she was able to understand such issues and was competent to give evidence.

Scarlett stated that "I felt a bit disappointed that I could not go to that school - I wanted to go to that school. They wrote in a book that they do take people with disabilities." She further said "it (the school) had lots of things that I'd like to go on."

4.1.2 Evidence of Mrs Bernadette Finney

(a) Background

Mrs Bernadette Finney is married to Mr Scott Finney. They have two children, the eldest being Scarlett born 26 June 1992. Mr and Mrs Finney first knew that Scarlett had Spina Bifida when Mrs Finney had an ultrasound test at approximately 35 weeks pregnant. On the day of her birth, Scarlett had an operation at the Sydney Children's Hospital to close the lesion on her back to prevent infection.

Since her birth, Mrs Finney stated that they have consulted a number of experts in relation to Scarlett's condition. Following Scarlett's operation to close the lesion on her back, Mr and Mrs Finney attended the New Children's Hospital where they saw Dr Carolyn West, the Co-ordinator of the Spina Bifida Clinic. Mrs Finney stated that Scarlett saw Dr West only once or twice. Mrs Finney stated that they decided to go back to the Spina Bifida Clinic at the Sydney Children's Hospital.

Mrs Finney stated that she first met Ms Neroli Dickson through the Spina Bifida Clinic at the Sydney Children's Hospital. Mrs Finney stated that they arranged for Scarlett to see Ms Dickson to check that Scarlett was developing consistently with other children of her age. The assessment with Ms Dickson was not completed due to some health problems in Mrs Finney's family which caused her to travel to Brisbane at that time.

(b) Effect of Scarlett's disability

Mrs Finney stated that Scarlett is an independent child who copes well with her disability. She said that Scarlett has a positive outlook on life and is able to deal with most situations.

Mrs Finney stated that no particular household routines have been instituted nor any changes made to their house or its toilets to accommodate Scarlett's disability. Mrs Finney said that Scarlett does not use her wheelchair inside the house and during the week it usually stays at Jasper Road Public School which she is now attending. Mrs Finney stated that Scarlett is able to get in and out of regular chairs and can get in and out of the car by herself. No changes have been made to their car.

Mrs Finney said that Scarlett is capable of washing most of her body by herself, is able to get in and out of the bath and shower by herself and is able to get on and off the toilet by herself. Scarlett dresses herself except for her ankle foot orthoses.

Mrs Finney stated that there is generally no need for Scarlett to be lifted. Mrs Finney further stated that due to back surgery in August 1998, she had been unable to lift Scarlett at all during 1998. According to Mrs Finney, Mr Finney only lifts up Scarlett if they are in a hurry, which happens very occasionally.

In relation to managing Scarlett's incontinence, Mrs Finney stated that on weekdays she catheterises Scarlett in the morning and in the evening at home. Mrs Finney further stated that the nurse catheterises Scarlett at school, or in the absence of the nurse, the teacher's aide takes over this job. Mrs Finney stated that the nurse is in the process of teaching Scarlett to catheterise herself and that Scarlett should be able to do this by the time she is eight years old. On the weekend, Mrs Finney stated that Scarlett is catheterised three times a day at home.

Mrs Finney stated that Scarlett also has a bowel management program which includes a bowel wash approximately twice a week together with medication and a high-fibre diet. Mrs Finney stated that the school at which Scarlett is presently enrolled has never informed her that Scarlett had soiled herself nor is Mrs Finney aware of there having been any need to change Scarlett's clothes at school. Mrs Finney stated that Scarlett wears pull-ups pants which have padding and are disposable. These pull-up pants catch any slight soiling and are changed each time Scarlett is catheterised.

Mrs Finney stated that there has not been any problem with unforseen accidents or embarrassment to Scarlett in regard to her incontinence. Nor has Scarlett ever soiled herself at home in bed.

In relation to Scarlett's mobility, Mrs Finney stated that Scarlett is able to walk well for short to moderate distances. Scarlett can walk up hills depending on the incline. Rough ground is more difficult for Scarlett to negotiate than level ground, but she can still do it. Mrs Finney stated that they first bought a wheelchair for Scarlett in April 1997.

According to Mrs Finney, Scarlett's disability is not a major issue for either Mr or Mrs Finney or for Scarlett.

(c)       The history of Scarlett's schooling

Mrs Finney stated that Scarlett attended her first preschool, Kings Road Kindergarten, from 1996 to approximately March 1997. In approximately March or April 1997, Mrs and Mr Finney moved Scarlett to the Gracelands Childcare Centre.

Since 1998 Scarlett has attended the Kindergarten class at Jasper Road Public School.

(d)       The application to the School

Mrs Finney stated that she and her husband began to make inquiries in February 1997 of schools in the local area for Scarlett's enrolment in a 1998 Kindergarten class. Mr and Mrs Finney are Jehovah's Witnesses and were keen to locate a school that did not conflict with their beliefs.

The School is an independent co-educational day school catering for children from Kindergarten to Year 12. It is located amongst natural bushland on the side of a gully. It is a non-denominational school.

Mrs and Mr Finney obtained a prospectus about the School. Mrs Finney stated that she felt very encouraged when they read in the prospectus that the School catered for children with physical disabilities. Mrs and Mr Finney completed an application form for Scarlett's enrolment in the 1998 Kindergarten class and forwarded it to the School with the $75 application fee.

Mrs Finney stated that two to three weeks later she was contacted by Mr Morgan, the Registrar of the School. During this conversation, Mrs Finney said that she explained Scarlett's condition in great detail. Mrs Finney also said that Mr Morgan requested information relating to Spina Bifida and that within days she delivered the requested information personally.

Mrs Finney stated that she then went on a tour of the School. The tour proved to be very exciting and the facilities of a very high standard.

Mrs Finney stated that she then received another phone call from Mr Morgan. During this conversation, Mr Morgan apparently explained that the Principal of the School had grave concerns about how Scarlett would fit in. Mrs Finney stated that Mr Morgan told her that Scarlett would be the first and only child with Spina Bifida to attend the School. Mrs Finney stated that he also said the School had made inquiries about integration for Scarlett, and would only receive two weeks wages for a teacher's aide for the whole year. Mrs Finney stated that she asked Mr Morgan why Scarlett would need a teacher's aide as a nurse would be able to come to the School to look after her catheterisation needs. Mrs Finney stated that Mr Morgan strongly suggested that Mr and Mrs Finney not put all their hopes into the School and should consider other schools.

An interview was held at the School on 19 March 1997 and attended by Mr and Mrs Finney, Scarlett and Mr Morgan. Mrs Finney stated that at the interview, Mr Morgan said that one of his biggest concerns related to the toileting aspects of Spina Bifida. Mrs Finney said that she again explained to him that a nurse would be available and, in the event of an emergency, either Mrs Finney or friends who lived locally would be able to assist.

Mrs Finney stated that Mr Morgan also raised concerns as to how Scarlett would get around the School, as it was quite large. Mrs Finney said that she told him that Scarlett would then use her wheelchair.

Mrs Finney also stated that Mr Morgan advised her that the interview process would take time because he would need to put Scarlett's case before the School board and teachers and that it might be necessary to speak to the parents as well.

According to Mrs Finney, Mr Morgan suggested that Mr and Mrs Finney make inquiries about another private school in the area, Pacific Hills Christian School. Mrs Finney stated that she advised Mr Morgan that Pacific Hills Christian School was not suitable because its religious beliefs conflicted with their own.

Mrs Finney said that Mr Morgan advised that the next step would be for Scarlett to come in to the School and meet one of the Kindergarten teachers at which stage she would be tested on her ability. Scarlett would then meet the Principal. The School would then make its decision on her application.

Mrs Finney stated that Mr Morgan asked for written confirmation about the availability of a nurse. On 26 June 1997 Mrs Finney forwarded to the School a copy of a letter dated 25 June 1997 from Westmead Hospital and Community Health. In her cover letter Mrs Finney wrote:

"My apologies for not having been in touch with you earlier. Enclosed is a letter of confirmation from the Community Health Service that they will visit Scarlett once a day. This should be sufficient for Scarlett, of course if there are circumstances where Scarlett would need further attention then I would make myself available. We have been trying Scarlett on a course of medication to assist her bowel emptying once a day properly in the mornings; having promising results with fewer accidents during the day. If you have any comments or questions please don't hesitate to call."

Mrs Finney then stated she did not hear from Mr Morgan for nearly three months. Sometime in August 1997 she rang to inquire as to the status of Scarlett's application. Mrs Finney stated that Mr Morgan advised her that the teachers were concerned as to how they were going to cope with Scarlett in their classroom, such as pushing her wheelchair. Mrs Finney said that she told Mr Morgan that Scarlett could manage with hardly any assistance and that as she got older she would become even more independent.

Mrs Finney stated that she asked if the interview process could move forward as they were anxious to have Scarlett secured in a school for 1998. Mr Morgan apparently replied that next time they spoke it would be to arrange a time for Scarlett to meet the Kindergarten teacher.

Mrs Finney stated that Mr Morgan next telephoned her on 11 August 1997 to advise her formally that Scarlett's application had not been successful. Mrs Finney stated that when she asked why, Mr Morgan told her that they did not have the facilities for Scarlett's condition. In particular, Mr Morgan apparently advised Mrs Finney that as the School could not provide a teacher's aide, it had been concluded that they did not have the resources to care for Scarlett.

By letter dated 20 August 1997, the School wrote to Mr and Mrs Finney confirming that Scarlett's application had not been successful.

(e)       Comment on the School's arguments of "unjustifiable hardship"

In the letter dated 5 January 1998 from Mr and Mrs Finney to the Commission, Mrs Finney commented on the letter from the School dated 21 November 1997 to the Commission outlining why acceptance of Scarlett's application would amount to "unjustifiable hardship".

In response to the School's concern that it would need to have teachers who were interested and willing to accept the additional responsibility of teaching and supervising Scarlett, Mrs Finney stated that given the prospectus from the School asserts that they had units set up for children with physical disabilities, one would assume that they already have staff employed who are interested and willing to accept the additional responsibilities of teaching and supervising such students.

In response to the School's comments on the need for special toilet facilities, Mrs Finney stated that a nurse would come daily to look after Scarlett's toileting needs and that the nurse had said Scarlett would require a small lockable cupboard. There was never said to be any need for a fully fitted accessible toilet for Scarlett as she can be comfortably catheterised on a normal toilet seat.

As for the School's comment that all parts of the school would need to be accessible by wheelchair, Mrs Finney stated that this would only be relevant if Scarlett remained in her wheelchair at all times, but that this was not the case.

In response to the School's comment that it would need to make special transport arrangements, Mrs Finney stated that she had advised Mr Morgan that she would transport Scarlett to and from school, and make herself available to transport Scarlett for excursions and assist her during them.

In relation to the School's concern that it would need someone available to catheterised Scarlett twice a day at the School, Mrs Finney stated that catheterisation is required three times a day overall, twice at home and only once at School. Mrs Finney also referred to a letter dated 20 August 1997 from Dr Robert Farnsworth of Prince of Wales Private Hospital stating "I have advised intermittent catheterisation three times a day continued...". Again, Mrs Finney noted that a nurse had been arranged independently of the School to attend to Scarlett's catheterisation needs.

In relation to the School's concerns as to the need to provide someone to change Scarlett's nappy at school on a regular basis and on the occasions when she soiled herself, Mrs Finney stated that she would make herself available to come to the School if necessary outside of the times when the nurse would change and catheterise Scarlett. In the event that Mrs Finney was not available, she stated that she had friends who lived locally that could be used as emergency back-up. Mrs Finney also stated that a bowel management program entered into over the past four months had proved successful in eliminating any bowel accidents during the day.

As to the concerns raised by the School that it would need to widen all of its doorways to allow a wheelchair to fit through, Mrs Finney stated that Scarlett's wheelchair more than comfortably fits through most, if not all, doorways. In the event that there was a problem and her wheelchair did not fit through a doorway, Scarlett would leave her chair outside and walk into the classroom area. Further, Mrs Finney stated that Scarlett would enter all classrooms without her wheelchair, as there is no need for her chair in such areas and Scarlett only requires it for long distances.

In response to the School's comment that the maximum additional funding available to it to employ extra staff would be approximately $5,000 per annum, Mrs Finney referred to the Request for State Integration Program Funding Support for Jasper Road Public School outlining a request for a teacher's aide for only five and a half hours per week, 35 days total for the school year. Mrs Finney noted that Jasper Road Public School did not need a full-time teacher's aide to assist Scarlett.

As for the School's comment that the maximum amount of funding possible for modifying toilets and widening doorways and ramping was $10,000, Mrs Finney again stated that there was no need to completely modify the toilets nor to widen all the School's doorways.

Mr Morgan also commented that when he contacted Mrs Wilcox, the Community Nurse at the Castle Hill Nursing Association as recommended by Mrs Finney, Mrs Wilcox did not know of Mrs Finney or Scarlett. Mrs Finney stated that this confusion was clarified when a letter was sent to the School confirming that the nurse would be coming once a day to change and catheterise Scarlett.

(f) Cross-examination of Mrs Finney

Several further matters came out in Mrs Finney's cross-examination. With respect to the evidence of Mrs Garven, the owner of the preschool which Scarlett had been attending, Mrs Finney stated that she was disillusioned by the information Mrs Garven had given to Mr Morgan. She said that Mrs Garven's information had been "pretty unfair" and that as a result Scarlett had been removed from that preschool. She indicated that Mrs Garven's attitude towards Scarlett had been limiting Scarlett's development.

Mrs Finney stated that during her time at preschool Scarlett was only catheterised at home, and that her catheterisation at school only began in 1998. This also applied to her bowel management program. This was why Scarlett was still wearing nappies at pre-school.

She stated that she had been positive about Scarlett attending Jasper Road Public School for Scarlett's sake, but that actually "I was pretty upset". She felt that the Respondent should have had a program in place for children such as Scarlett.

4.1.3 Evidence of Mr Ken Masters

(a)       Background

Mr Ken Masters is the Principal of Jasper Road Public School where Scarlett enrolled in the 1998 Kindergarten class.

Mr Masters stated that Jasper Road Public School caters for students with and without disabilities. He stated that since the late 1980's the school has had a "Special Support Unit" to cater for children with a range of disabilities. At that time, Jasper Road Public School was the school chosen to accommodate children with disabilities who had previously been attending the Northcott School. Mr Masters stated that the result of bringing the two schools together is to give the children with disabilities the opportunity to integrate into the local community. In his view, this system of integration works very well.

Mr Masters stated that Jasper Road Public School has 651 children in total, 34 students with disabilities being in the Special Support Unit and sixteen children with disabilities being integrated into the mainstream classes.

(b)       Scarlett's needs at Jasper Road Public School

Mr Masters stated that Scarlett is in the mainstream part of the school, not in the Special Support Unit. He also stated that there had been no real change in the level of Scarlett's disability since she started Kindergarten.

In relation to mobility, he stated that although Scarlett can walk, it is easier for her to use a chair between classes. Mr Masters also stated that Scarlett generally places her wheelchair near the door so that she can walk in and out without disturbing other children in the classroom.

He stated that Scarlett does not require any special education programs and that she is just a regular child in the classroom. Mr Masters said that Scarlett requires teacher's aide time for her physical disabilities but has no learning disabilities. He stated that she has no more problem with writing than any other child and that she has no problem going to the play areas at recess. He further stated that Scarlett mixes with children from the mainstream classes and children from the Special Support Unit in combined activities.

In relation to toileting, Mr Masters stated that Scarlett needs to be catheterised twice a day while at school. Mr Masters further stated that Scarlett does not suffer from a problem of toilet accidents any more than any other child.

In relation to support, Mr Masters stated that based on an assessment of Scarlett they have requested 35 days a year for a teacher's aide to assist her. Mr Masters referred to the Request for State Integration Program Funding Support for 1998. That document is a request to the NSW Department of Education and Training for funds to pay for the teacher's aide time which Scarlett receives in class. The request states:

"Scarlett will need to have a toileting program and catheterisation program set in place. She will need assistance in moving safely from venue to venue. She will need modification of gross motor activities and dance activities and will require assistance with daily fitness activities."

The request allows for support of five and a half hours per week of teacher's aide time dedicated to Scarlett. Mr Masters also referred to the further request to the NSW Department of Education and Training for funds for a teacher's aide for Scarlett in 1999. That request also allows for support of five and a half hours per week, noting that Scarlett now has "a set toileting and catheterisation program in place which allows minimal disruption to class activities." Mr Masters stated that the support that Scarlett receives does not depend on there being a Specialist Support Unit at Jasper Road Public School.

Mr Masters stated that the teachers in their mainstream classrooms do not necessarily have any specialist training, although in the Special Support Unit they do have some specialist training.

(c) Cross-examination of Mr Masters

In cross-examination Mr Masters stated that Scarlett's need for extra support were assessed at five and a half hours a week. This person sometimes helps Scarlett move from place to place, prepares her for catheterisation, and assists her to get things out of her bag if they are needed quickly. The person also assists with the sports program and gross motor work.

Mr Masters said that Scarlett had been provided with a sled-chair at a cost of $70 for moving around over carpet in the classroom, although this was not a necessity. He stated that no alterations had been made to any of the school's classes for Scarlett because they were already all accessible for children with disabilities. No alteration had been made to the school's timetable to assist Scarlett.

4.1.4 Evidence of Ms Suzanne Gilbert

(a)       Background

Ms Suzanne Gilbert is a Clinical Nurse Consultant with the Outreach Service for Cystic Fibrosis and Spina Bifida at the Sydney Children's Hospital. Ms Gilbert has held this position for thirteen years.

Ms Gilbert stated that her major function is as a Community Liaison Nurse. Within the hospital, she stated that she coordinates the Spina Bifida and Cystic Fibrosis Clinic and attends clinic reviews. Her role includes helping to educate families about the care of their child and assisting parents in finding preschools, school integration and employment. Ms Gilbert stated that she is experienced in issues relating to Spina Bifida and qualified to speak about the condition from a nursing perspective.

Ms Gilbert stated that the first time she met Scarlett was in approximately 1995. Ms Gilbert stated that her involvement was to initiate a bowel management program so that Scarlett would be socially bowel continent.

Although Scarlett is bowel and bladder incontinent, Ms Gilbert stated that these problems are well managed by catheterisation and a bowel management program. Ms Gilbert stated that this enabled Scarlett to participate perfectly well in regular life.

Ms Gilbert stated that Scarlett is quite mobile and can move in and out of her wheelchair and stand for long periods when supported. In relation to any possible learning difficulties, Ms Gilbert asserted that Scarlett does not have hydrocephalus although she noted that most children with Spina Bifida have some cognitive problems in the form of short term memory loss, distractability and problems with abstract thinking. Ms Gilbert stated that she was unable to comment on Scarlett's intellectual capacity but, to her knowledge, Scarlett was coping well with her school work.

(b)       Scarlett's needs at school

In relation to Scarlett's toileting needs at school, Ms Gilbert stated that intermittent bladder catheterisation requires a clean toilet environment which contains a lockable cupboard for the pads and tubes.

Ms Gilbert stated that it would not be necessary to build a new toilet for Scarlett as a regular toilet would be suitable, as long as it was lockable and preferably a separate and private toilet only used by Scarlett. She stated that Scarlett wears a pad for bowel incontinency and at times bladder leakage. That pad needs to be changed when she is catheterised. Ms Gilbert stated that although Scarlett is bladder incontinent, she does not leak enough urine to smell or wet her clothes if she is catheterised appropriately. The catheterisation procedure takes about fifteen minutes. Children usually learn to catheterise themselves by the time they are ten years old. Bowel incontinence is unlikely to occur if Mr and Mrs Finney implement a bowel management program at home.

On overnight school excursions, Scarlett will require a trained person to carry out necessary catheterisation.

In relation to Scarlett's mobility, Ms Gilbert stated that Scarlett can transfer from wheelchair to a regular chair by herself and that no modifications are required to classroom furniture. As for any learning difficulties, Ms Gilbert stated that it is too early to discuss whether Scarlett has any such difficulties but she requires monitoring.

(c)       Conversation with Mr Morgan

Ms Gilbert stated that she spoke to Mr Morgan in approximately March 1997. She said that she confirmed the availability of a community nurse for Scarlett. In relation to his inquiries about the possibility of bowel accidents, Ms Gilbert stated that she told him that Mrs Finney would need to be on call. Ms Gilbert stated that she also spoke about the possibility of learning problems but could not yet say if they were present.

Ms Gilbert also stated that she said Scarlett would require her wheelchair for long distance travel but that within the classroom she could walk just like the other children. Ms Gilbert suggested that Mr Morgan contact the Occupational Therapy Department at the Sydney Children's Hospital which could visit the School to discuss any changes which would be required. Ms Gilbert stated that she advised Mr Morgan that someone from the Spina Bifida Clinic at the Sydney Children's Hospital would be available to go to any meetings and provide any more input if required.

4.1.5 Evidence of Ms Neroli Dickson

(a)       Background

Ms Neroli Dickson is an Occupational Therapist at the Sydney Children's Hospital. She has held this position since January 1994.

Ms Dickson stated that she works mainly with children who are seen in the Spina Bifida Clinic. Her role includes visiting schools and homes in order to help parents and teachers to cope with everyday situations which arise in the management of children with disabilities in their actual environment. These include mobility, access, transport and communication issues. Ms Dickson stated that as part of her day to day work at schools, she talks to the child's class and the whole staff when requested, not just the child's teacher. She also discusses with school staff how to modify the physical surroundings, how to approach subjects which involve a lot of writing or physical activity and how to modify rules and equipment in sporting activities. Ms Dickson further stated that her role includes assessing whether or not schools are physically accessible for children with Spina Bifida. Ms Dickson stated that she makes such assessments on average once a month throughout the year.

(b)       Assessment of Scarlett

Ms Dickson stated that she first saw Scarlett on a formal basis on 20 March 1997 when she had an appointment with Occupational Therapy. At that time Scarlett was just over four and a half years old. Ms Dickson stated that she saw Scarlett for three sessions, the last on 15 April 1997.

Ms Dickson stated that Mr and Mrs Finney had requested that she see Scarlett formally in order to conduct a developmental assessment because they were hoping to enrol her in a school in 1998. Ms Dickson stated that whilst she did not complete her assessment, she was able to form the opinion that Scarlett was able to cope in a regular school. Ms Dickson stated that Scarlett was able to get on and off a chair easily, moved around the room with a reasonable degree of agility and played on the equipment with confidence. Ms Dickson stated that in her opinion, Scarlett has a "mild physical disability".

Ms Dickson stated that she had not seen Scarlett in a session since 15 April 1997, although she had seen her informally at the Spina Bifida Clinic of the Sydney Children's Hospital.

(d)       Assessment of the School

Ms Dickson stated that on 5 November 1998, she attended the School to assess the School premises and facilities to determine whether they were accessible to Scarlett. Ms Dickson stated that in her opinion, Scarlett would have managed safely and independently at the School with relatively minor changes. Those changes are outlined in her report dated 9 November 1998. The changes required according to Ms Dickson's report, were:

*       alterations to the toilet cubicles so as to contain a lockable cupboard and drop-down hand rails installed close to the toilet (such equipment could be moved to other toilet facilities as Scarlett changed grades);

*       hand rails added to stairs; and

*       modification in the distance travelled each day by rearranging the curriculum, as the distances of a typical day's activities would be too great for Scarlett to manage. In the alternative, Ms Dickson recommended that Scarlett be provided with a powered wheelchair or scooter to enable her to cover the longer distances and to more easily negotiate the uneven pathway leading to the playing fields.

Ms Dickson stated that in her opinion Scarlett's potential for development in a regular class would be the same as any other child. Ms Dickson also stated that Scarlett may need some help in the classroom to keep her on tasks, especially with anything she found difficult.

(e)       Cross-examination of Ms Dickson

Ms Dickson stated that she had never been contacted by the School. She would have been available and happy to provide advice and assistance. Ms Dickson confirmed that essentially the School was accessible, and that her recommendations would have made it safer and more adequate.

4.2 Evidence for the Respondent

4.2.1 Evidence of Mr Robert Phipps

(a) Background

Mr Phipps is the Principal of the School, and has held that position since January 1996. Mr Phipps stated that the School was established as a non-profit company in 1982. He stated that it is an independent, non-selective, co-educational and non-denominational school for Kindergarten to Year 12. It is set in ten hectares of natural bushland on the side of a hill.

Mr Phipps stated that the School buildings are spread out over the entire area of the ground, consisting of class home rooms and subject specific or specialist buildings such as Commercial Studies/History, Mathematics, Computing, Science, Visual Arts, Library, Humanities, Music, Drama and Physical Education.

Mr Phipps stated that the School aims to establish and maintain relationships with the students and families for each student's whole school career, that is, for a minimum of thirteen years. In order to achieve this, he stated that the School considers each applicant for enrolment not only on the basis of the student's needs at the time he or she enters the School, but for the remainder of his or her school years.

(b)       Financial status and funding of the School

Mr Phipps stated that the School is a non-profit organisation but operates to a budget as do other businesses. He stated that in determining budget expenditure and revenue components, a number of factors are taken into account including enrolment projections, staff requirements, funding requirements, economic conditions and competitors' fee levels. However the aim of the budget is not to make a profit.

Mr Phipps stated that if any surplus is made, it goes towards funding projects and services for the students.

Mr Phipps stated that school fees represent 75% of the School's income. The remaining 25% is from Commonwealth and State funding. Mr Phipps stated that school fees fall significantly short of the total cost of providing services for students.

Mr Phipps stated that the School carries a debt and at the beginning of 1999, that debt was approximately $5,382,000.

Mr Phipps stated that the School receives a State Government interest subsidy on 30-35% of the interest on its debt, the remainder of interest payments being subsidies by the parents. The State and Commonwealth Governments also provide recurrent funding for the School amounting to approximately 33% of the average cost of educating a student in the State school system.

Mr Phipps stated that the level of funding for the School is "Category 3". He further stated that students with disabilities are able to be funded at the "Category 12" level. Mr Phipps stated that one-off grants are also available to assist disabled students and he believed that this type of grant is available up to $10,000.

(c)       Attitude and practices of the School in relation to students with disabilities

Mr Phipps stated that a number of children with disabilities are currently enrolled at the School. The nature of the disabilities includes: sight or hearing impairments; amputated limbs; autism; cerebral palsy; attention deficit disorder; intellectual disabilities; learning difficulties and emotional disorders. Mr Phipps stated that some of these students have been accepted by the School since Scarlett's application was made.

For the children with disabilities currently enrolled at the School, Mr Phipps stated that:

*       integrated aide time is distributed according to funding;

*       teachers accommodate those students using modified programs and teaching styles;

*       teacher training and in-servicing is provided to meet their needs;

*       applications are made for capital funding for specific teaching aids (eg laptop computers); and

*       the School provides facilities for outside specialists to visit.

Mr Phipps stated that the School continually works to improve its methods for integrating and accommodating children with disabilities. He stated that in October 1998, Dr Loretta Giorcelli, a specialist educator in this area, conducted an in-service workshop for School staff on inclusive education and catering for special needs in the classroom.

(d)       Application process generally

Mr Phipps stated that he delegates the responsibility and authority of offering places to applicants at the School to the Registrar, Mr Morgan, where those applicants do not have special needs and meet the selection criteria. Mr Phipps further stated that he retained an overall discretion in relation to decisions to offer places to applicants. Where an applicant does have special needs, Mr Phipps stated that Mr Morgan keeps him fully appraised of preliminary discussions. Mr Phipps stated that he then makes a decision based on all the information provided. Mr Phipps stated that he does not get involved in the interview process.

Mr Phipps stated that for the 1998 intake into Kindergarten at the School, over 100 applications were received. Seventy-seven interviews were held with parents who wished to pursue those applications. According to Mr Phipps, places were then offered initially to 44 children. Since the beginning of 1998, Mr Phipps stated that four more children had joined the Kindergarten class, making a total of 48 children in two classes of 24.

(e)       Scarlett's Application

Mr Phipps stated that he first became aware of Mr and Mrs Finney's application for Scarlett when Mr Morgan informed him that he was inviting Mr and Mrs Finney to a preliminary interview because the application indicated that Scarlett had special needs. Mr Phipps stated that for all the applications for Kindergarten 1998 at the School, it was only necessary to conduct one preliminary interview. That interview was with Mr and Mrs Finney and Scarlett.

Mr Phipps stated that sometime shortly after the preliminary interview, Mr Morgan raised some concerns in relation to Scarlett's needs. Mr Phipps stated that he told Mr Morgan that they should make some inquiries before coming to a decision. Mr Phipps stated that Mr Morgan kept him informed from time to time about those inquiries. Mr Phipps stated that they did not have any medical reports about Scarlett and were largely ignorant about Spina Bifida and its special requirements.

Mr Phipps stated that Mr Morgan told him that Mr Morgan spoke to Ms Garven who had given him a very different assessment of Scarlett to that of Scarlett's parents.

Mr Phipps stated that Mr Morgan also advised him as to inquiries made at the Department of School Education and the Association of Independent Schools. Mr Phipps stated that Mr Morgan told him that for the purposes of Government funding, the School is a Category 12 when providing additional resources for a child with a disability and thus entitled to receive an additional $1,709 per year per child for 1998. Integrated aid was also available, being approximately $900 to $1500 per year per child, depending on the assessment provided by the School.

Mr Phipps stated that Mr Morgan told him that Mrs Finney had offered to come to the School or for a friend to come to the School, in addition to the daily visit by the community nurse, if Scarlett had an accident. Further, Mr Phipps stated that Mr Morgan had advised him that when he contacted the community nurse that Mrs Finney had said would be available, the nurse denied any knowledge of Mrs Finney.

Mr Phipps stated that by June 1997, the School was still waiting on medical information in relation to Scarlett's bowel medication.

(f)       The School's view as to Scarlett's needs

Mr Phipps stated that it was his understanding from the discussions with Mr Morgan, and all the information collected, that to accommodate a child with Scarlett's condition the School would need to:

*       have teachers who were interested and willing to accept the additional responsibility of teaching and supervising such a student;

*       train all teachers who had contact with such a student so they know how to look after that student (estimated cost of $2,500 per training session);

*       provide special toilet facilities;

*       ensure all parts of the School were accessible by wheelchair;

*       employ a full-time special integration aide to look after that student's special needs (estimated cost in August 1997 of between $20,000 to $25,000 per year but estimated subsequently to be closer to $30,000 to $35,000);

*       organise special transport arrangements and care for excursion purposes;

*       modify the curriculum in certain areas;

*       implement special plans in order to integrate the student into school life in the playground.

Further, Mr Phipps stated that in order to accommodate Scarlett in particular, the School would need to:

*       have someone available to catheterise Scarlett twice a day at the School;

*       have someone available on a regular basis to change Scarlett's nappy at School on the occasions when she soiled her nappy;

*       provide a private toilet area for Scarlett to be changed and a lock up cupboard where her toiletry equipment, including her catheter, could be stored safely;

*       provide someone to push Scarlett's wheelchair around the School grounds whenever she moved from one place to another;

*       ensure there was someone to accompany Scarlett on excursions to care for her.

(g)       The School's decision

Mr Phipps stated that the final assessment of Scarlett's application took place on 7 August 1997. At this time, he sat down with Mr Morgan and went through all the information he had, including information on Spina Bifida from various professional bodies, discussions with various people such as Mrs Garven, Ms Gilbert, Ms Cadwallader and information regarding recurrent funding.

Mr Phipps stated that he concluded that in the best interests of all concerned he should assess Scarlett as a child with a disability for which the School could not adequately cater.

Mr Phipps stated that his reason for this decision was that the level of the current funding which could be made available would not be sufficient in order to appropriately accommodate Scarlett's needs. Mr Phipps stated that in his view, the School would need a full-time integration aide to assist Scarlett's movement throughout the day, to enable her full participation in the Kindergarten program and to attend to her personal needs.

Mr Phipps stated that he was concerned that without a full-time integration aide, there was the real possibility that Scarlett may consume too much of the teacher's time, to the detriment of the other children in the class.

In addition, Mr Phipps stated that there would be potential industrial and occupational health issues for the staff. Furthermore, Mr Phipps stated that the School's duty of care to its pupils required a teacher to be present with the pupils at all times, and in his view that duty might have been compromised. Mr Phipps also stated that the full-time integration aide was needed to ensure the integrity of the educational program for Kindergarten students and to maintain Scarlett's dignity and maximise the opportunity to develop Scarlett to her full potential.

Mr Phipps stated that he later approved a letter drafted by Mr Morgan sent to Mrs and Mr Finney on 20 August 1997 confirming in writing that their application was unsuccessful.

(h)       Letter dated 21 November 1997 to the Commission

Mr Phipps referred to the letter dated 21 November 1997 from the School to the Commission responding to questions raised by the Commission.

In that letter, Mr Phipps provided the following information about Scarlett's disability and current needs:

*       Scarlett needs to be catheterised at least twice daily and have her nappy changed when required. Despite catheterisation, Scarlett soils her nappy a few times a week at preschool;

*       Scarlett is able to walk around a classroom, although she is sometimes unsteady on her feet and can lose her balance; and

*       Scarlett requires a wheelchair to move long distances or to move around outside on uneven ground. Scarlett can propel herself in the wheelchair for short distances, if the ground is level, but requires someone to propel her if the ground is rough or inclines or declines.

The letter then set out the conclusions reached by the School as to the needs to accommodate a child with Scarlett's condition and to accommodate Scarlett in particular.

The letter also stated that "the School would need to widen all of its doorways, as they are not wide enough for a wheelchair to fit through". The letter also stated that Scarlett would not suffer a detriment if she did not attend the School as there were other excellent schools available within a reasonable distance which were better equipped to accommodate her.

(i)       Cross-examination of Mr Phipps

In cross examination Mr Phipps agreed that integration policies advantage all students - students with disabilities have the benefit of learning and socialising with there peers, and students without disabilities learn acceptance and tolerance. Mr Phipps stated that enrolment at the School is for a thirteen year period, unless the student withdraws. If a student acquired a disability (resulting in them having to use a wheelchair) the School would explore ways to keep them there. Mr Phipps agreed that there had been no assessment of Scarlett in situ at the School. He agreed that the occupational health and safety committee had not considered the case, and there had been no occupational therapist's assessment. He agreed that these would have been helpful. Mr Phipps described a number of students with disabilities at the School, but agreed that he had not been responsible for there enrolment. He described other students for whose enrolment he had been responsible, but could not recall details of pre-enrolment procedures. Mr Phipps agreed that the School's annual reports showed an operating profit of $132,000 in 1996 and $208,000 in 1997, but that this was before debt reduction. Mr Phipps agreed that the decision had been an important one for the School, and that he had had to make it based on inadequate information. He placed the responsibility for provision of the information on Mrs and Mr Finney. However, he agreed that the decision had been made before Scarlett reached the formal assessment stage. Mr Phipps agreed that, not having seen Scarlett, he had no direct knowledge of how she moved around in her wheelchair, or how much she could walk herself.

4.2.2 Evidence of Ms Elizabeth Pelinkhoff

Ms Elizabeth Pelinkhoff is the Director of Community Relations at the School. Her role includes conducting tours of the School to prospective parents and visitors.

Ms Pelinkhoff stated that she took Mrs Finney on a tour of the School on 18 February 1997. Ms Pelinkhoff said that Mrs Finney advised her halfway along the tour that Mrs Finney's child would be seeking enrolment in Kindergarten and that she had a disability. Ms Pelinkhoff stated that Mrs Finney inquired as to whether the School had children with disabilities. According to Ms Pelinkhoff, Mrs Finney explained that her child had Spina Bifida and while able to walk, needed a wheelchair for longer distances. Ms Pelinkhoff stated that where a parent has flagged a particular special requirement of their child, it is her usual practice to tell the parent to note that on their application form or in a covering letter. Ms Pelinkhoff did not specifically recall telling Mrs Finney to do this but admitted that she probably did.

Ms Pelinkhoff stated that the School had two children with artificial limbs and a sight impaired child who had a part-time integration aide from the Blind Society. Ms Pelinkhoff also stated that the boy who had two limbs missing had a "buddy" who walked with him slowly between classrooms and up the steps. In cross-examination, Ms Pelinkhoff stated that this "buddy" was a classmate.

4.2.3 Evidence of Mr Nigel Morgan

Mr Nigel Morgan is the Registrar of the School and has held this position since March 1996. As Registrar, Mr Morgan stated that he is responsible for interviewing all students who apply for enrolment. Mr Morgan stated that he deals with approximately 250 to 300 applications for enrolment each year.

Mr Morgan stated that where an application discloses that a child has special needs or circumstances, he usually arranges a preliminary interview with the parents to ascertain the needs of the child in more detail and the relevant resources and the facilities of the School. Mr Morgan stated that special needs or circumstances included applications from children with disabilities.

(a)       Receipt of Scarlett's application and initial inquiries

Mr Morgan stated that on or about 4 March 1997, the School received Mr and Mrs Finney's application for enrolment of Scarlett. Mr Morgan noted that the cover letter referred to Scarlett's condition and her requirements for certain specifications at a school. After receiving the application from Mr and Mrs Finney, Mr Morgan wrote to them on 5 March 1997 acknowledging receipt.

Mr Morgan stated that he had a telephone conversation with Mrs Finney shortly after receiving the application. He stated that he informed Mrs Finney that he knew nothing about Spina Bifida and that he needed further information in relation to both Spina Bifida and Scarlett's condition. Mr Morgan stated that Mrs Finney told him that there were many types of Spina Bifida and that Scarlett was not an extreme type but "moderate". Mr Morgan stated that Mrs Finney told him Scarlett was incontinent and used a wheelchair. A day or so after this conversation, Mrs Finney dropped some information on Spina Bifida into the School.

Mr Morgan stated that he telephoned the Spina Bifida Association of NSW and spoke to Ms Lyn Wright. He stated that Ms Wright explained the condition and that a child with this condition would need a fully integrated support system which included teachers, parents and health professionals. Mr Morgan stated that he requested and received some information from Ms Wright.

Mr Morgan stated that after reading this material, he was concerned about having the appropriate support structures in place at the School for a student with Spina Bifida. Mr Morgan stated that such structures would be required both in the short and long term, over thirteen potential years of schooling.

(b) Interview with Mr and Mrs Finney and Scarlett

Mr Morgan stated that Mr and Mrs Finney and Scarlett came to the School for the preliminary interview on 26 March 1997. He stated that during the interview he talked to Mrs Finney while Scarlett pottered around his office. Mr Morgan stated that other than an initial greeting, Mr Finney did not speak at all during the interview.

Mr Morgan stated that he discussed Scarlett's incontinence with Mrs Finney. He stated that Mrs Finney told him that at the Kings Road Preschool, which Scarlett then attended twice a week, the staff attended to all of her toiletry needs and changed her when she needed to be changed. Mr Morgan stated that he expressed his surprise that changing Scarlett was part of the service at that preschool as it did not happen at the School's Kindergarten. Mr Morgan also advised Mrs Finney that the Kindergarten teachers did not change nappies nor did the children wear nappies. Mr Morgan stated that he told Mrs Finney that the teacher's aides also did not change the children.

Mr Morgan stated that they discussed Scarlett's toileting and catheterisation needs. Mr Morgan stated that Mrs Finney told him that Scarlett would need a private toilet with a lockable cupboard, a teacher or teacher's aide to push her around the School and someone to look after her toileting needs. Further, he stated that Mrs Finney told him that Scarlett would need to be catheterised twice a day and would need someone to change her nappy, although soiling was not a daily occurrence. Mr Morgan stated that he told Mrs Finney that the School was not set up for a child to have private toileting facilities and was hard pressed for storage space so that it might be difficult to find such a facility for Scarlett.

Mr Morgan stated that Mrs Finney told him that she had arranged for a nurse from the Castle Hill Nursing Association to come and catheterise Scarlett, being Ms Wilcox. Mr Morgan stated that Mrs Finney also told him that her husband, herself or a friend would also make themselves available if needed.

Mr Morgan stated that he expressed his concerns to Mr and Mrs Finney as to the success of their application. He stated that he told Mr and Mrs Finney that he would need to make inquiries and that they may not have the resources to help Scarlett. Mr Morgan stated that Mrs Finney told him that they realised this and they were looking at other schools. Further, Mr Morgan said that Mrs Finney said that they had their hearts set on the School but understood that it might not be possible. Mr Morgan stated that Mrs Finney also told him that they were Jehovah's Witnesses and were therefore not interested in religious schools such as Pacific Hills Christian School, a school which he had recommended to them.

At the end of the meeting, Mr Morgan stated that he advised Mrs Finney that he would need to ring Ms Garven and Ms Wilcox and would also need medical reports or any other information about Scarlett. He also stated that he told Mr and Mrs Finney that if all went well, Mr and Mrs Finney would have an interview with the Principal and the Kindergarten teachers.

(c) Further inquiries made by Mr Morgan

Mr Morgan stated that in our about April 1997 he telephoned the Kings Road Preschool and spoke to Ms Garven.

Mr Morgan stated that Mrs Garven told him that Scarlett wore heavily padded incontinence pads, did not have bowel control, soiled herself in the classroom a couple of times a week, was too heavy to lift onto a table when she had to be changed and had to be changed on the floor. Mr Morgan also stated that Mrs Garven said that while Scarlett did not use her wheelchair in the classroom, she could not really move around the classroom without falling over a lot and often lost her balance. According to Mr Morgan, Mrs Garven also told him that Scarlett lacked a certain amount of independence and required a lot of feedback and support. Mr Morgan stated that Mrs Garven was of the view that Scarlett needed a full-time care giver.

Mr Morgan stated that he then telephoned Ms Wilcox of the Castle Hill Nursing Association. Mr Morgan stated that Ms Wilcox told him that she had never heard of Mr and Mrs Finney, Scarlett or the School.

Mr Morgan stated that he then telephoned Ms Gilbert of the Sydney Children's Hospital. Mr Morgan stated that Ms Gilbert told him that Scarlett wore heavily padded incontinence pads and soiled herself.

Mr Morgan stated that he then telephoned the Department of School Education and spoke to Mr Alan Riddell from the Non-Government School Funding Section. Mr Morgan stated that Mr Riddell advised him that funding was available and, that regardless of the sort of disability, the child is entitled to a fixed amount of funding per year.

Mr Morgan stated that he telephoned Ms Robyn Yates of the Association of Independent Schools to further discuss funding. Mr Morgan stated that Ms Yates confirmed the information provided by Mr Riddell.

Mr Morgan stated that at this stage he had received no further information from Mrs Finney.

Mr Morgan said that he telephoned Mrs Finney sometime in mid to late April. Mr Morgan stated that he explained the substance of his conversations with Ms Garven, Ms Gilbert and Ms Wilcox. Mrs Finney apparently stated that the comments of Ms Garven were neither true nor correct and that she would speak with Ms Garven. Mr Morgan stated that Mrs Finney also admitted that she had not yet made contact with Ms Wilcox but she had intended to do so. Mr Morgan stated that during this conversation, he advised Mrs Finney that these matters would have to be resolved and that she needed to get back to him as soon as possible and to provide any further reports.

Mr Morgan stated that he heard nothing further from Mrs Finney until about 26 June 1997 when he received a letter apologising for the delay and enclosing a further letter from the Community Nurse confirming that a nurse would visit the School once a day.

Mr Morgan stated that this information conflicted with what Mrs Finney had previously told him about Scarlett's needs. Mr Morgan stated that Mrs Finney had said that Scarlett needed to be catheterised twice a day, rather than once a day. Mr Morgan also stated that Mrs Finney had advised that she had been trying Scarlett on a course of bowel medication and that he expected a medical report would be provided about this.

Mr Morgan stated that he then telephoned Ms Annette Cadwallader, Head of the Junior School at Pacific Hills Christian School. Mr Morgan stated that Ms Cadwallader advised him that there were a number of issues involved. Mr Morgan stated that Ms Cadwallader told him that incorporating a child with special needs was "an expensive option". Mr Morgan said that she raised with him the need for an "extensive support system" and at least one full-time integration aide on staff and perhaps one or two casual aides to cover if the full-time aide is sick or on leave.

According to Mr Morgan, Ms Cadwallader also advised that if soiling accidents occurred, no matter how well managed, they would cause a real strain on peer relations and the School would need to have an aide to deal with such accidents. Mr Morgan also stated that Ms Cadwallader raised the possibility of legal problem such as those arising from teachers lifting children in and out of wheelchairs and the need for special insurance.

Mr Morgan stated that she advised him that children with Spina Bifida "generally need catheterisation twice a day". He said that Ms Cadwallader also said that teacher's aides were needed for physical education and to carry the child in and out of the bus on school excursions. Further Mr Morgan asserts that Ms Cadwallader said that the School would need to have wheelchair access for the whole School, classroom programs would need to be modified and programs introduced to suit the particular child, especially for physical education.

Mr Morgan stated that by this stage he had formed the view that the School did not have the facilities or the resources to ensure all of Scarlett's needs could be properly and adequately accommodated.

Mr Morgan stated that he also met with two of the Kindergarten teachers at the School, Ms Michelle Romeo and Ms Kirsty Hails. This was because of his concern about the impact on the Kindergarten teachers of any additional responsibility as well as the impact on the other Kindergarten students. Mr Morgan stated that either Ms Hails or Ms Romeo stated that they felt quite comfortable about having a child with Spina Bifida such as Scarlett at the School provided that the School put in the appropriate support mechanisms and that the other junior school staff would need to be consulted.

Mr Morgan stated that he realised that Scarlett's needs would require many changes to the School's buildings and timetabling. Further, it would impact upon the staff and other students. He concluded that the School could not provide the necessary facilities.

By August 1997, Mr Morgan stated that he was of the view that he had gathered sufficient information from external sources and that there had been enough time for Mr and Mrs Finney to forward any extra information. He noted that the only information that Mr and Mrs Finney had provided had been the initial material about Spina Bifida provided before the preliminary interview and the letter from the community nurse.

(d)       Decision of the School to refuse the application

Mr Morgan stated that on or about 7 August 1997, he sat down with Mr Phipps to review the information that they had and to discuss each of the matters and concerns that he had. Mr Morgan stated that they discussed the needs of Scarlett, the need for curriculum changes and a modified program, issues as she got older and her possible thirteen years of schooling with the School, the services that the School could presently provide and the services the School would need to provide, the information received about Scarlett and the opinion of the Kindergarten teachers. Mr Morgan stated that they also discussed the effect of Scarlett's enrolment on teachers and the training of the teachers, the class room and the parent bodies and that there was not sufficient funding available to the School to provide the services of a teacher's aide which they felt would be necessary.

Mr Morgan stated that they believed it would not be in Scarlett's best interests to consider her for enrolment with the School without the proper resources and facilities.

Mr Morgan stated that he rang Mrs Finney on 11 August 1997 to inform her that Scarlett's application had been refused. In the course of that conversation, Mr Morgan stated that he told Mrs Finney that he was very sorry that the School would not be able to proceed with Scarlett's application. Mr Morgan stated that he told Mrs Finney that the School was unable to provide all the services that Scarlett required.

On 20 August 1997, Mr Morgan wrote to Mr and Mrs Finney to confirm that the application had been refused.

(e)       Cross-examination of Mr Morgan

Mr Morgan stated in evidence-in-chief that he had taken detailed notes of the process which he went through. These had been made on the envelope in which Mrs Finney had provided the material on Spina Bifida. He indicated that he had studied the material provided on Spina Bifida. Sections relating to mobility and toileting problems were highlighted. However, the large amount of variation of abilities of children with this disability were not highlighted. Mr Morgan agreed that he did not consider the use of the large toilet attached to the Kindergarten rooms as a possibility when he made his assessments. Mr Morgan further agreed that, although one of the factors for the School's decision was that he and Mr Phipps thought Scarlett had to be catheterised twice a day, it was not included in his notes or on the interview form. He agreed that he had not attempted to clarify this with Mrs Finney, nor raised with her the question of the bowel management program about which he was not satisfied. 4.2.4 Evidence of Ms Annette Cadwallader

Ms Annette Cadwallader is the Head of Junior School at the Pacific Hills Christian School. Ms Cadwallader gave evidence as to her telephone conversation with Mr Morgan.

Ms Cadwallader stated that she had received this call in late April or early May 1997. She stated that she told Mr Morgan that an important aspect of the Pacific Hills Christian School was that it was able to provide access to most areas by ramps. She stated that she also explained that it was very difficult for children in wheelchairs to get up and down stairs unless there was an assistant. Ms Cadwallader also told him that the School would need to provide a nurse or a person experienced in catheterisation if the child needed to be catheterised. That person would need to go on excursions and camps with the child.

Ms Cadwallader stated that she also told Mr Morgan that a man would be needed to be available for excursions to lift the child in and out of buses and around areas when on excursions. Ms Cadwallader agreed that she had never met Scarlett Finney.

4.2.5 Evidence of Ms Jeanette Garven

Ms Jeanette Garven owns and operates the Kings Road Long Day Preschool ("the Preschool"). Scarlett attended the Preschool during Ms Garven's period of ownership from January 1997 until April 1997.

Ms Garven stated that at the Preschool, Scarlett had no bladder or bowel control and was not aware of when she had wet or soiled herself. Ms Garven also stated that Scarlett wore a nappy at all times. She said that Scarlett's mobility was not good, often lost her balance and did not use callipers or a wheelchair.

Mr Garven gave evidence as to her telephone conversation with Mr Morgan. She stated that Mr Morgan asked her about Scarlett and how she was at Preschool. She stated that they discussed her strength and weaknesses. Ms Garven recalled that she mentioned Scarlett had trouble balancing and fell over a lot, wore a nappy and that the staff have to change her. Ms Garven stated that she told Mr Morgan that they were trying to develop Scarlett's independent skills and that before Scarlett does things she needs assurance. Ms Garven qualified that those particular statements were made in relation to Scarlett's use of the computer.

Ms Garven also stated that she told Mr Morgan that Mrs Finney had suggested that someone from the Spina Bifida Association assess Scarlett at the Preschool.

Ms Garven said that she spoke to Mrs Finney after Mrs Finney's interview with Mr Morgan. Mrs Finney asked her what she had told the School about Scarlett. Ms Garven stated that she told Mrs Finney that Scarlett did fall over, did not have good balance and that she couldn't climb onto the computer chairs without assistance. In relation to her comments about Scarlett's independence, Ms Garven stated that she told Mrs Finney that this comment was made in the context of Scarlett's use of the computer.

4.2.6 Evidence of Ms Kirsty Hails

Ms Kirsty Hails is a Kindergarten teacher at the School. Ms Hails provided a copy of the timetable for her current Kindergarten class with notes explaining the movements of the children in her class as they follow that timetable.

Ms Hails stated that due to the fact specialist teachers usually remained in their subject specific classrooms, the children at the School must leave their home classroom and travel for assembly, computer, drama, music, art, library and physical education. Ms Hails stated that she escorts the children in her class when they travel between classrooms. She stated that the class has to stop approximately every ten to fifteen metres so she could ensure all the children were walking in lines and had not strayed. An average trip between classrooms would take approximately five to ten minutes.

According to Ms Hails, the Kindergarten timetable is designed to provide the children with a variety of activities over the course of each school day. The variety of subjects in each day also means the children are able to get out of their room and move about the School. Ms Hails stated that to reorganise the timetable so as to have all the Kindergarten specialist classes on a couple of days would remove variety from their timetable and would be difficult, as the timetable for thirteen years of students must be coordinated.

Ms Hails also stated that her class might diverge from the timetable as many as five times a week by agreement between teachers due to unexpected events, excursions, incursions or the absence of specialist teachers.

Ms Hails went through the timetable to demonstrate the amount of movement required around the School. Dealing with arrivals and departures she stated that children had to walk some distance and up a hill to the pickup and dropoff point. However, she agreed that some children went to after-school care which was in the next building, and their would be no problem with a parent coming to the classroom to deliver and collect a child. Ms Hails stated that on Mondays there were normally two trips away from the Junior School 1 building - music and assembly. She agreed that for music the route she took had steps, but that there were alternatives that did not. This trip, a walk of around a minute for an adult, took five to seven minutes at the beginning of the year, and three to five by the end. Children walk in two lines of twelve, and there is a lot of stopping. She said that she normally walks backwards so that she can watch the children. The trip to assembly is marginally shorter. The stage, which a child would need to visit from two to five times a year to receive awards, has about eight steps. On Tuesdays, there are three trips - library, music and physed. The trip to the library would take her class about ten minutes. the majority of the lesson takes place on the lower level, although entry is normally on the upper level because of the security system. Subject to an arrangement being made about this, and someone else signing books in and out, Scarlett would not need to go to the upper level. Music has already been described, and physed depends on the nature of the lesson. Ms Hails said that on Wednesdays there is one trip to the computer class. On Thursdays there are no trips, and on Fridays there are two - physed and art. Physed is variable. Art takes three to five minutes if the class is in the downstairs art room, and five to seven in the upstairs art room. Ms Hails stated that she thought the travelling time for the whole week would total about ninety minutes. Ms Hails stated that there are two to three excursions a year. Parents often come, and it would be no problem for them to meet us at the destination, or follow in their own car. Ms Hails stated that there are two full-time teachers aides in the junior school who help the teachers prepare class work. The School also has four or five maintenance employees, all men. She saw no reason why such people could not be organised to provide assistance for Scarlett to move around at particular times. Ms Hails stated that parents may also be invited to attend the School to help with lessons and that in her current Kindergarten class, this already occurred.

Ms Hails stated that if a toileting accident occurred in class, the Kindergarten teacher cannot leave the classroom and must send the child, accompanied by another child, to the first aid room for help. A teacher may never leave the classroom unattended.

Ms Hails stated that children are expected to be toilet trained once they are enrolled in Kindergarten. Ms Hails stated that only two children in her class had wet their pants during the year and that when an accident of this kind occurs, the child is given clean clothing and supervised by two teachers or teacher's aides to clean him or herself up and to change their own clothes. Ms Hails stated that socially, wetting or soiling their pants at school was a very big problem.

Ms Hails also stated that she had previously taught two classes of children with disabilities as well as taught classes with individual children with disabilities.

4.2.7 Evidence of Dr Carolyn West

Dr Carolyn West is the Head of the Spina Bifida Unit at the Sydney Children's Hospital.

Dr West stated that the Spina Bifida Unit is often involved in the placement of children in schools and that they talk to families about the issues they need to consider in selecting a school. She stated that in the past ten years, on average she had dealt with approximately twenty children with Spina Bifida commencing school each year. Dr West was also the author of a chapter on Spina Bifida produced to assist schools and parents to better understand the needs of children with disabilities and accommodating them into regular schools.

Dr West gave evidence as to the nature of Spina Bifida. She stated that children with Spina Bifida are usually affected by three main problems, all of which may affect their schooling: mobility; incontinence; and learning. Dr West then gave detailed evidence on each of these areas in relation to children with Spina Bifida.

(a)       Education system issues

Dr West stated that when considering schools for a child with Spina Bifida, it was important that the school had all the necessary facilities to accommodate them. It was important that the school and the child match. Dr West also stated that any school which accepts a child with a disability must be aware of the needs of that child and be able to meet them for anticipated years of the child's schooling.

According to Dr West, the most important issue in relation to the schooling of a child with a physical disability was independence with respect to access. She stated that it was extremely important that the child is able to move around the routine school environment without assistance. If the nature of the school dictates that the child will frequently require assistance, then in her opinion that school was unsuitable for that child.

(b) Assessment of Scarlett

Dr West stated that she examined Scarlett on 10 November 1998 at the Spina Bifida Unit. A copy of her report was tendered. In that report, Dr West stated that Scarlett was "moderately affected" with Spina Bifida.

Dr West reported that Scarlett could stand unaided and walk short distances independently. Scarlett used "ankle foot orthoses" to maximise her walking potential, which provide support for her legs below the knees. She uses a manual wheelchair for longer distances. Although she has difficulties with slopes, both walking and in her wheelchair, she can manage a slight gradient. As for stairs, Dr West reported that Scarlett could manage two or three stairs with a railing both going up and down, although a flight of stairs was more challenging.

In relation to future mobility, Dr West stated in her report that she anticipated that Scarlett would use her wheelchair for independent mobility to a greater extent as she becomes older. Dr West also stated that she anticipated that Scarlett would maintain a limited amount of walking ability around the home and classroom. Dr West concluded:

"... her functional ability regarding mobility at present is that she is independent getting around on the floor, she can rise from the floor to a standing position, she can walk short distances and for longer distances she uses her manual wheelchair. She's independent in moving in and out of her wheelchair. She can also move from the floor to a small chair. She can move in and out of the car herself on and off the toilet herself, etc. In fact her parents do not need to lift her for any of her regular day activities. Parents may assist by lifting when there are time restraints".

In relation to continence issues, Dr West noted that Scarlett's bowel incontinence was being managed with a regular bowel emptying program and medication. Dr West noted that this program was started towards the end of 1997 in readiness to start school and had proved to be a most appropriate way of management.

Dr West also reported that bladder continence was being dealt with by regular emptying of the bladder by intermittent catheterisation by a parent or a competent trained carer in the morning, at lunchtime and prior to going to bed. Dr West noted that on this program, Scarlett remains dry on most occasions throughout the day. Dr West noted that Scarlett also wears a pad as a safety precaution. In her opinion, children with similar abilities to Scarlett become fully competent carrying out the catheterisation procedure themselves by the age of eight or nine years.

In relation to learning abilities, Dr West reported that Scarlett was born with mild hydrocephalus but whilst clinical evaluation over the first few months of her life revealed continuing mild hydrocephalus, there had been no further progression of that condition. Dr West noted that there had not been a formal developmental or psychological assessment of Scarlett's learning abilities. However, Dr West stated in her report that Scarlett had made excellent progress in the first six years of her life. Dr West stated that it appeared that Scarlett was functioning within the average range for her age, was making good progress in Kindergarten and was fully integrated into the regular classroom. Further, Dr West noted that Scarlett did not require extra educational support at present.

As for future learning ability, Dr West stated that in her experience, whilst children such as Scarlett (with underlying mild hydrocephalus) usually perform within the average range on an IQ test, more difficult areas of higher executive functioning may be a little more limited. Dr West noted that evidence of this is not always apparent at Scarlett's age. Dr West stated that when school work becomes more self directed and complex, it is her experience that many children with Spina Bifida do need some extra assistance either in the classroom or at home.

In relation to the short and long term needs of Scarlett, Dr West stated that consideration needs to be given to her entire school life. Dr West stated that it would at least be reasonable to presume enrolment would include infants and primary school education with a possibility for high school as well. Dr West stated that it was therefore necessary to look at both the immediate and the longer term needs, possibly for a total of thirteen years.

(c) Dr West's conclusions

Dr West stated that in relation to accessibility it would be difficult for the School to provide efficient and independent access to all areas of the School for a child in a wheelchair. The amount of movement between classrooms required a considerable amount of physical effort and energy, which could prove quite tiring for Scarlett.

In relation to toileting requirements, Dr West stated that catheterisation would need to be performed at least once a day at lunchtime. Dr West stated that on her current program, Scarlett is very acceptably dry. In relation to bowel continence, Dr West noticed that this is managed at home which keeps her clean in between times. Dr West noted that at the time of applying for enrolment at the School in early 1997, Scarlett did not have a routine bowel program in place. Such a program is now in place.

Dr West stated that Scarlett would need a private toilet that could be locked, ideally wheelchair accessible in order to accommodate her needs throughout her school life, with a cupboard in the toilet and the assistance of an aide or nurse.

In relation to educational requirements, Dr West stated that Scarlett would manage well in the regular classrooms in the early years of school and may not need any extra educational support.

Dr West stated that in her opinion, the School was not appropriate for Scarlett. She stated that the physical environment and structural organisation of the School, even with considerable alterations, would still leave Scarlett with a physically challenging environment which she would need to negotiate every day in order to participate fully in school life and to function independently as a full member of the school community.

(d) Cross-Examination of Dr WestIn cross-examination, Dr West stated that the toilets in the Kindergarten class would not be appropriate. However, she agreed that there was an accessible toilet in the Junior School 2 building which would be quite appropriate. However, on the day she was there it was locked and being used as a storage area. With regard to access Dr West stated that some paths in the School were too steep for Scarlett to use a manual chair herself. She would either need to use an electric wheelchair or receive assistance. Of the two options, Dr West thought that assistance would be more appropriate. Whilst not resiling from her opinions expressed in her conclusions, Dr West agreed that the School provided unique opportunities for its students, and that Scarlett would benefit enormously if she could cope with the challenges of the environment. 4.2.8 Evidence of Ms Janet Grey and Mr George Zakos

Ms Janet Grey and Mr George Zakos gave their evidence jointly. Ms Grey is a self-employed architect and Mr Zakos owns and operates a construction consultancy company. Ms Grey and Mr Zakos prepared, on the instructions of the Respondent, a joint report on the physical alterations and additions and the attendant were the School to become accessible for children with a physical disability and to users of wheelchairs in accordance with Australian Standards.

Ms Grey and Mr Zakos gave evidence that the redesign was done with an imaginary person in mind. Further Ms Grey and Mr Zakos stated that the design was for a person who was permanently in a wheelchair.

Ms Grey and Mr Zakos stated that the total cost of physical alterations and additions to the School would be $1,079,022.

The report provided for door widening in class rooms for Junior 1 and Junior 3 as well as doorway clearance on a "contingency" basis. The total estimated cost of doorway widening was $19,200.

The report provided for an accessible toilet cubicle including a lockable equipment box at cost of $7,000 for each of Junior 1, Junior 3, the music room, the multi-purpose hall and the science room. The cost of providing an accessible toilet cubicle and equipment box for the library and humanities rooms was estimated at $4,250 each. The total cost of providing accessible toilets and equipment was estimated at $43,500.

The report also provided for loose furniture suitable for use by children with disabilities in each of Junior 1, Junior 2, Junior 3, the music room, the arts and crafts room, the library, the humanities room, the science room, the computer maths room, the social sciences room and the Year 12 common room. Each set of loose furniture was estimated at $1000. The total cost of loose furniture was therefore estimated at $11,000.

4.3 View of the School

In the early part of the proceedings, prior to the giving of most of the evidence, the parties agreed that it would be helpful for me to visit and view the School and its facilities. This certainly proved to be the case in understanding much of the later evidence, and in appreciating the unique school setting. Some of the information gained through this process has come out in evidence already detailed. However, some observations are apposite. The School operates in a college format, catering for children from Kindergarten to Year 12. The campus, including all usual school facilities, is set out in a bush-like setting on the side of a hill. The buildings are constructed to take advantage of the setting, and many are on more than one level. However, in many cases, they contain external entrances for the various levels, and for a person using a wheelchair this advantage counters to some degree the sloping nature of the ground. Also, because of the attempt to maintain the bushland setting, in many cases whilst the most direct route between buildings involves the use of some steps, there are alternate routes via paths or a roadway which are level and sloped. Most classrooms have one step at the entrance. From the evidence of both sides, though, this would not be an issue for Scarlett at this stage as she would get out of her wheelchair to enter them. The main pick-up and drop-off point is up a quite steep slope. However, there is vehicle access to a bus pick-up point lower down the hill, and the after school care is on the same level as the Kindergarten. The oval (up a hill at the top of a quite steep dirt slope) and the yurt (in a gully in the bush down quite steep and uneven steps or down a dirt road) are the most inaccessible parts of the School, and a person using a wheelchair would not be able to reach them unassisted. All other facilities that I saw would be able to be reached independently by a person with Scarlett's level of disability, although assistance would be preferable because of the tiring effect of the distances, and the steepness of some of the slopes. Finally, I should confirm that there is an accessible toilet in the Junior School 2 building, not far from the Kindergarten. On the day of my visit it was locked and used as a storeroom, but this should be easily rectified.

5.       SUMMARY OF ARGUMENT

The Complainants and the Respondent each made detailed written submissions as well as written submissions in reply. I have summarised those submissions below.

5.1 The Complainants' case

5.1.1       Discrimination

The Complainants submitted that the Commission should have little difficulty in determining that the School discriminated against Scarlett within the meaning of s. 5(1) of the Act; that is, the School directly discriminated against Scarlett.

5.1.2       Unjustifiable hardship

The Complainants' submissions in relation to the unjustifiable hardship are summarised below.

(a)        The major legal issue in this inquiry is whether the School is entitled to succeed in its claim that the provision of services or facilities to enable Scarlett to be enrolled as a student would impose an unjustifiable hardship on it, within the meaning of ss. 22 (4), 4 and 11 of the Act.

(b)       The proper course for the Commission to take when considering unjustifiable hardship is, firstly, to determine whether the respondent has discriminated against the complainant, and then to determine whether the respondent is able to make out the defence of unjustifiable hardship: see Francey and Anor v Hilton Hotels of Australia Pty Ltd (1997) EOC 92-903 at 77,452.

(c)        The onus is on the respondent to establish the defence of unjustifiable hardship: Scott & Anor v Telstra Corporation Limited (1995) EOC 92-717 at 78,401.

(d)       The question whether the respondent has made out a defence of unjustifiable hardship is one to be determined upon the facts.

(e)        While it is correct to say that the defence of unjustifiable hardship in relation to education is available only in relation to a refusal to accept an application for admission to an educational institution, that this does not necessarily mean that an educational institution has no protection whatsoever. Once a student has been enrolled in an educational institution, any subsequent inability of the School to provide its services to the student is likely to raise issues relating to indirect, rather than direct discrimination. That being the case, a school in such a position can rely upon the reasonableness requirement contained in s. 6 (b) of the Act.

5.1.3       Findings of fact

The Complainants submitted that the Commission should make the following findings of fact in this inquiry:

(a)       The application by Mr and Mrs Finney was an application for enrolment in the Kindergarten year only; alternatively, the enrolment was limited to her schooling to the end of Year 6.

(b)       What was required in this case was nothing less than a full assessment of Scarlett and of the services and facilities at the School by a team of experts, such as that provided by the Spina Bifida Clinic at the Sydney Children's Hospital or the Spina Bifida Unit at the New Children's Hospital. Such a team was available to carry out an assessment at no cost to the School.

(c)       The investigation by the School as to the services and facilities that would be required by Scarlett was inadequate. This reflects an attitude of the School not to seriously consider her application for enrolment. The School formed an unnecessarily negative view of Scarlett's ability to access its services and facilities, based upon stereotypes and prejudices formed as a result of information obtained from sources which were primarily inexpert in Spina Bifida and in some cases wholly unaware of Scarlett's individual circumstances.

(d)       The preferred course in gathering information about the needs of a student with Spina Bifida seeking enrolment is that suggested by Dr West: it is "a combined effort" between the parents and the School.

(e)       Mrs Finney had not been repeatedly requested by the School to provide further medical information about Scarlett. Mrs Finney had provided all the information that she could reasonably be expected to have provided. The School had been provided with enough material to impose an obligation upon it to seek a formal assessment of Scarlett's needs prior to making any decision on the application for

enrolment. The School should not have rejected Scarlett's application without at least giving the Mr and Mrs Finney an opportunity to provide that information.

(f)       The Respondent has not established that the services and facilities that it would have to provide to enable Scarlett to access its benefits are not such as to impose an unjustifiable hardship upon it. In particular:

(i)       there is evidence which indicates that the teachers at the School were willing to accept the additional responsibility of teaching and supervising a student such as Scarlett, provided that there were appropriate support mechanisms;

(ii)       there would be minimal additional training required to equip the teachers at the School with the skills to teach Scarlett;

(iii)        the toilet facilities necessary to accommodate Scarlett are either already present at the School, in the form of an existing accessible toilet, or can be provided with minimal alteration to the existing facilities and at minimal cost to the School;

(iv)        Mr Phipps' suggestion that all parts of the School would need to be accessible by wheelchair grossly overstates what in fact would be necessary for Scarlett to be able to attend the School;

(v)        there would be no necessity for the School to employ a full-time specialist integration aide to look after Scarlett's special needs. Aide time of about five and a half hours per week would be required for Scarlett; such aide time is already available at the School and sufficient State and Commonwealth funding is available to cover this;

(vi)        there would have been no need for the School to organise special transport and care for Scarlett on excursions;

(vii)        where possible, the School has in the past been willing to modify its curriculum to accommodate children with disabilities. In any event, there is very little need to modify the curriculum to accommodate Scarlett's disability;

(viii)        the School has not shown the need for any special plans in order to integrate Scarlett into the school life in the playground;

(ix)        there was never any suggestion by Mr and Mrs Finney that Scarlett needed to be catheterised twice a day at school. Mr and Mrs Finney always maintained that Scarlett only needed to be catheterised once a day at school. In fact Scarlett only needs to be catheterised once a day at school and any "problem" of catheterisation was resolved by the availability of a community nurse to visit the School once a day to catheterise Scarlett;

(x)        there was nothing which reasonably suggested that Scarlett would be likely to soil her nappy frequently at school. In addition, there was external support available to the School from Mr and Mrs Finney and their friends to assist in the event that Scarlett soiled her nappy;

(xi)        the existing toilet area was suitable for Scarlett's purposes, and any modifications to that area would not be so expensive as to impose an unjustifiable hardship upon the School;

(xii)        it would have been possible with the assistance of an aide, or possibly a powered wheelchair, for Scarlett to move in a wheelchair to and from the various classrooms where necessary so as to enable her to participate in the Junior School timetable;

(xiii)        Mr and Mrs Finney had offered to accompany Scarlett on excursions, and this obviated the need for the School to employ someone else to have to accompany her on excursions;

(xiv)        the School was not badly off financially, and it could afford to pay for any modifications which would be required to enable Scarlett to attend the School;

(xv)        there were substantial benefits to be gained in enrolling Scarlett at the School; and

(xvi)        Scarlett has suffered substantial general damages in being refused enrolment by the School.

5.2 The Respondent's case

5.2.1       Introduction

The Respondent submitted that:

(a)       the evidence must be considered in the context of the framework provided

by the Act; and

(b)       the legal issue for determination is whether section 22(4) of the Act is satisfied. This has two limbs:

(i)       that if admitted as a student at the School, Scarlett would require services and/or facilities that are not required by students who do not have a disability; and

(ii)       that the provision of those services and/or facilities would impose unjustifiable hardship on the School, which in turn raises issues under section 11 of the Act.

5.2.2       Services and facilities

In relation to the services and facilities provided by the Respondent, the Respondent submitted that:

(a)       section 22(4) requires the burden of establishing the services and facilities to be shared between the complainants and the respondent, through an interactive process;

(b)       having regard to the expert evidence, the Commission should find that:

(i)       the services and facilities required by Scarlett are as set out in paragraphs 34 and 35 of Robert Phipps' Statement;

(ii)       the services and facilities required must be assessed against Scarlett's needs over a possible thirteen years of education at the School;

(iii)       there was no obligation imposed on the School to obtain a formal assessment;

(iv)       the Respondent has discharged its obligation to participate in the interactive process;

(v)       the Respondent reached the appropriate determination of Scarlett's needs; and

(vi)       the Complainants have failed to participate in the interactive process and have accordingly failed to discharge their burden.

It was submitted by the Respondent that the Commission should find that:

(c)       the expert's evidence supports the School's determination of the child's needs;

(d)       Mrs Finney's description of Scarlett's needs is deliberately understated; and

(e)       where there is a conflict between the evidence of the Respondent and the Complainants with respect to the manner in which the services and facilities were determined, the Respondent's evidence should be preferred because of the inconsistencies and deliberate omissions in Mrs Finney's evidence and the failure of Mr Finney to give evidence in the proceedings.

5.2.3       Unjustifiable hardship

The Respondent submitted that the Commission should find that the provision of the services and facilities required would impose unjustifiable hardship on the School, and should make the following factual findings in this regard:

(a)       the School is an independent school with unique features, particularly its bushland setting, specialist classrooms used by Kindergarten to Year 12 and its curriculum;

(b)       the School carries a debt of over $5 million, and operates to a tight budget. It is not cashed up to the extent that it can apply surplus funds to modify the School or employ additional staff for the benefit of one child;

(c)       the estimated expenditure required by the School to modify the physical layout of the School to make it accessible for Scarlett over the duration of her schooling would exceed $1 million;

(d)       the estimated expenditure required to employ an additional member of staff could amount to $35,000 each year;

(e)       there would no specific benefit to Scarlett or the students, staff or School, of Scarlett attending the School;

(f)       the parents of existing and future students would suffer a detriment in the form of increased school fees if the School was to provide the services and facilities required by Scarlett. Funds expended on accommodating Scarlett would result in less funds available to be expended on other students;

(g)       existing and future students would suffer a detriment if modifications to the physical layout and curriculum were required to accommodate Scarlett;

(h)       the accommodation of Scarlett may increase the supervision required and impose other obligations on the staff, and this is a detriment for the purposes of the Act;

(i)       the requirement to make physical modifications to the School and the attendant expense is a detriment to the School;

(j)       the staffing implications which would be attendant on accommodating Scarlett would impose a financial detriment;

(k)       attending the School may also impose a detriment on Scarlett in that it would make her daily tasks and participation in the life of the School beyond what should be required and would thereby impede her personal development;

(l)       the Respondent's attitude to Scarlett and her application has been one of compassion and motivated by the objective of ensuring her dignity;

(m)       in addition to the Act, there are a number of legal obligations imposed on the School, which are relevant to unjustifiable hardship;

(n)       there is a risk of harm or unlikely events occurring which if unable to be attended to could cause Scarlett embarrassment;

(o)       there are alternative schools - in particular Jasper Road Public School - which can provide the educational services sought by Scarlett and her parents and are able to accommodate her special needs; and

(p)       Scarlett's attendance at the School is not in her best interests.

5.2.5       Relief

The Respondent's submissions as to relief were that the complaint should be dismissed and if the Commission finds against the School, then no further action should be taken and the prayers for relief sought by the Complainants should not be granted.

6.       THE FINDINGS: THE FACTS

The Complainants argued that the services and facilities required to accommodate Scarlett at the School did not impose an unjustifiable hardship on the School. The Respondent disputed these factual bases put forward by the Complainants. The Respondents argued that on their understanding of the facts, the services and facilities required by Scarlett did constitute unjustifiable hardship.

On the evidence before me, my factual findings are as follows.

6.1       Willingness of teachers to accept responsibility

I am satisfied that on the proviso that the School put the appropriate support mechanisms in place, the Kindergarten teachers of the School were willing to accept the additional responsibility of teaching and supervising a student such as Scarlett. Mr Morgan's evidence of a conversation with one of the School's two Kindergarten teachers, that on this proviso they felt "quite comfortable" about having such a child at the School, clearly supports this conclusion. With regard to other teachers there was no evidence adduced. I can only observe, though, that they have been willing to accept students with other disabilities.

6.2       Additional training of teachers required

I am satisfied that only minimal additional training was required for the teachers at the School to teach and supervise Scarlett. In particular, I note that one of the School's two Kindergarten teachers, Ms Hails, had experience in teaching classes of children with disabilities and had taught classes with individual children with disabilities. Further, the principal of Jasper Road Public School stated that in the regular classrooms, which Scarlett currently attends, the teachers did not have any specialist training. Mr Phipps referred to an in-service workshop previously conducted in this area, and such a workshop should have been more than adequate.

6.3       Scarlett's toileting needs: catheterisation and risk of "accidents"

I accept the evidence of Mrs Finney that Scarlett needed to be catheterised only once a day at school. While Mr Masters stated that Scarlett needs to be catheterised twice a day at school, this was at the School's convenience rather than in response to Scarlett's need to be catheterised more than once.

Mr Morgan gave evidence that Mrs Finney told him that Scarlett would need to be catheterised twice a day. However, I find that he became confused on this point. I note that Mr Morgan had spoken to Ms Cadwallader who said that children with Spina Bifida "generally need catheterisation twice a day". Further, Mr Morgan stated that the letter from the community nurse advising that a nurse would be available to catheterise Scarlett once a day at school, was an unsatisfactory response as he understood that Scarlett needed catheterisation twice a day. At this point, Mr Morgan could have telephoned Mrs Finney to clarify the adequacy of these arrangements.

I am satisfied that Scarlett's need to be catheterised once a day at school was resolved by the availability of a community nurse. I am also satisfied that within a few years, the evidence indicates that Scarlett would learn to catheterise herself.

I am also satisfied that Mr and Mrs Finney had instituted a bowel management program to minimise the risk of any bowel "accidents". In any event it appeared that such accidents were rare. Ms Gilbert gave evidence that bowel accidents were unlikely to occur if Mr and Mrs Finney implemented a bowel management program at home. Dr West gave evidence that Scarlett's bowel incontinence was being managed with a regular bowel emptying program and medication. According to Dr West, this program was started towards the end of 1997 in readiness to start school and had proved to be a most appropriate form of management.

Furthermore, I am satisfied that external support was available from Mrs Finney and a number of friends who lived near the School to assist Scarlett in the event of any bowel accidents.

6.4       Toilet modifications required

As to the toilet modifications required by Scarlett at the School, I am satisfied that it was not necessary to build a new toilet for Scarlett or for the toilet to be wheelchair accessible. Scarlett could use a regular toilet, provided it was lockable and contained a lockable cupboard to store catheterisation equipment. Ms Dickson also recommended that drop-down handrails be installed close to the toilet on both sides. Both the cupboard and handrails could be moved to other toilet facilities as Scarlett changed grades. Ms Gilbert and Dr West gave evidence that it would be preferable that this toilet only be used by Scarlett.

Because of the nature of Scarlett's disability she only needed to use the toilet once a day. I note that there was an existing accessible toilet in the Junior School 2 building which was locked and used as a storage cupboard. This toilet could have been allocated for her exclusive use, and a lockable cupboard could have been installed. Because she would only use it once a day the short distance she would need to travel would not significantly add to the distance of her movement around the School. Toilet modifications necessary were therefore minimal.

6.5       Teacher's aide requirements

The School argued that it would need a full-time integration aide to assist Scarlett's movement throughout the day, enable her full participation in the Kindergarten program and attend to her personal needs.

On the basis of the evidence presented to me, I am not convinced that a full-time integration aide was needed to accommodate Scarlett.

6.5.1       Mobility

The main area in which Scarlett required assistance at the School was in moving from class to class. I accept the evidence on behalf of the School that under the current curriculum, Scarlett would be required to cover a number of distances between classes each day. I accept the evidence of Ms Hails that this would total no more than 90 minutes a week. The evidence suggests that there will be many occasions on which Scarlett would manage such moves from class to class by herself. In this regard, I note from Ms Hails' evidence that the Kindergarten children are generally allowed a fair amount of time to move from class to class and that the class already has to stop every ten to fifteen metres. Some of the difficulties that Scarlett may encounter in moving from class to class would be obviated by the time already allowed to move between classes.

I accept that Scarlett would require her wheelchair for some of these distances and/or assistance on certain parts of the moves from class to class.

I note that the School already has two full-time teacher's aides. The Respondent submitted that the two teacher's aides are "fully committed". However, it does not seem unreasonable that those teacher's aides could be organised to assist Scarlett (on either a regular or ad hoc basis) with some of the longer or more difficult moves between classes. Even if that time was indeed fully committed, the part-time assistance of another teacher's aide allocated specially to Scarlett (as at Jasper Road Public School) could have been organised to assist with the longer or more difficult moves each week. As addressed below, some government funding was available in this regard. If this part-time aide was not always available, coverage could be obtained through task-sharing amongst these three aides. Further, I note from Ms Hails' evidence that more than one teacher sometimes escorts the children from class to class. I also note from Ms Hails' oral evidence that the School employs four to five workmen who can be called upon to assist or even booked to assist at a certain time.

I do, however, accept that it would be inappropriate to expect other Kindergarten children to push Scarlett's wheelchair. Whilst this sort of "buddy" system may be viable as she gets older, and whilst such a system would assist her integration into the School, it is just too much responsibility to place on a Kindergarten child.

I am satisfied that the assistance which Scarlett would have required to cover the distances between classes could have been accommodated by the time already allowed for such distances, the use of her wheelchair for longer distances, the use of alternate routes on difficult terrain, the assistance of the current staff (including teachers, teacher's aides and workmen) to push her wheelchair when necessary or by some part-time assistance of a specially allocated teacher's aide. I do not believe that Scarlett would have required a teacher's aide allocated solely to her on a full-time basis to assist her in moving about the School.

6.5.2       Toileting/Personal Needs

I note that at Jasper Road Public School, the School which Scarlett presently attends, a teacher's aide is required for only five and a half hours per week. I note also that two and a half hours of that time allowed for the teacher's aide is for "toileting/catheterising". However, at the School this would have been primarily the duty of the community nurse attending to Scarlett each day. In addition to that nurse, a teacher's aide would not be required on a routine or regular basis to attend to Scarlett's toileting or personal needs. In any event, such teacher's aide time would either be already available at the School or could be applied for. Again, some government funding was available.

6.5.3       Classroom assistance

There is insufficient evidence that Scarlett has any learning disability or any need for assistance in this regard.

However, I note that at Jasper Road Public School, some of the teacher's aide time provided for Scarlett is allocated to help her to modify and adapt gross motor, fitness and dance activities in order to suit her abilities and to develop her skills to take part in those activities. I am satisfied that Scarlett may require some assistance to fully participate in the School's activities and program. However, I am also satisfied that such needs could be accommodated by the teacher's aides already at the School or by a minimal amount of additional teacher's aide time.

6.6       Accessibility of the School generally

I accept in general the evidence of Ms Grey and Mr Zakos as to the modifications required to make the School accessible to users of wheelchairs in accordance with Australian Standards. However, many of those modifications are clearly not necessary to accommodate Scarlett. Most particularly, Scarlett is not permanently in her wheelchair and does not require all areas of the School to be wheelchair accessible. Accordingly, the provision for ramping and the widening of doors throughout the School is not required to improve accessibility of the School for Scarlett. Further, installation of lifts in a number of buildings would not be necessary, and bearing in mind that Scarlett is only catheterised once a day at school she would not need accessible toilet facilities adjacent to every classroom. This report is appropriate for the premise on which it was based, but because that premise is so removed from Scarlett's actual needs the report is of minimal value to this inquiry.

Clearly there are some areas of the School which could be improved to accommodate Scarlett through consultation between the School, Mr and Mrs Finney, Scarlett and an occupational therapist. For example, Ms Dickson highlighted a number of areas that could be improved by the provision of handrails.

In addition, there would be some moves from class to class by which Scarlett could go by a longer route to avoid steps or difficult terrain. Again, this would be a matter for consultation between the School, Mr and Mrs Finney, Scarlett and an occupational therapist.

There was some discussion as to the accessibility of the School in relation to dropping off and collecting Scarlett from School. Ms Hails stated in her oral evidence that there was no reason why Scarlett could not be dropped off at the bus turntable and her parents could wheel her down to the School and also wheel her up on collecting her.

In summary, it is my view that most of the changes to the School which were required to improve its accessibility to Scarlett were not major changes.

6.7       Excursion requirements

I am satisfied that adequate arrangements could be made to accommodate Scarlett attending school excursions. Mrs Finney made clear that she would be willing to accompany Scarlett on school excursions including transporting Scarlett when necessary. I am satisfied that there would have been no need for special transport arrangements for Scarlett on excursions nor for Scarlett to be lifted on and off buses as suggested by Ms Cadwallader. Further, more and more public transport vehicles have facilities to address access needs, and this trend will continue. It is also clear that Mrs Finney would have been available to attend to catheterisation and Scarlett's other needs on either an all day or an overnight excursion.

6.8       Curriculum modifications required

I accept that Scarlett may not be able to participate or may participate differently in some activities in the School's curriculum. However, such changes would be minimal, and not difficult to implement. Dr West gave evidence that ideas in this regard are not new, and just require lateral thinking and the seeking of outside advice by teachers.

Modifying the School's curriculum to reduce some of the distances travelled from class to class may have assisted Scarlett to participate more fully. Where necessary, the School has previously been willing to modify its curriculum. In this regard, I note that Ms Hails gave evidence that although the School timetable is fixed, it was subject to changes on an ad hoc basis and might be changed as many as five times a week.

I do not agree that some modification to the curriculum to reduce some of the distances travelled in Kindergarten (or in subsequent years that Scarlett attended) would greatly impact upon the whole School or remove the benefits of the School's unique curriculum. Such modifications would not necessarily involve all of Scarlett's class and may be specific to her - this is not uncommon in school environments for such diverse reasons as language programs, accelerated learning programs, or disabilities.

I am satisfied that any modifications to the School curriculum to accommodate Scarlett were not unduly burdensome on the School. A balance would need to be achieved, as is the case with all timetabling exercises.

6.9       Availability of Funding

I am satisfied that government funding was available to the School. Although it is not a large amount, it is not disputed that some integration funding was available. I also note that one-off capital grants of up to $10,000 were available to assist students with disabilities. A prior application by the School for a one-off grant of this kind had been successful.

6.10       Financial circumstances of the School

I accept the Respondent's evidence as to its current debt and the available surplus for the 1998 budget. I do not, however, accept that the School is not cashed up to the extent that it cannot apply surplus funds to modify the School or employ additional staff to accommodate Scarlett. The School's operating profit increased over the two years for which budgets were provided. Such expenditure would need to be carefully considered by the School, but this is true of any school expenditure in the current competitive education market.

6.11 Estimated costs incurred by the School to accommodate Scarlett

As stated above, I accept the evidence of Ms Grey and Mr Zakos as to the modifications required to make the School accessible to users of wheelchairs in accordance with Australian Standards. I also accept their evidence as to the estimated costs of those modifications being in excess of $1 million.

However, as I stated above, many of those modifications are clearly not services or facilities required by Scarlett. The estimated costs included amounts for several accessible toilets, ramping and lifts throughout the School and the widening of all doorways to accommodate a wheelchair. I am of the view that most of those costs would not need to be incurred in accommodating Scarlett.

My findings as to the precise services and facilities which were required to accommodate Scarlett have already been set out. In general terms, I note that Ms Dickson's assessment of the changes required were based on an assessment of both Scarlett in particular and from visiting the School environment. I therefore prefer the evidence of Ms Dickson over that of Ms Grey and Mr Zakos as to what changes were required to accommodate Scarlett at the School. Those changes were relatively minor and the costs would have been a small fraction of the Gray-Zakos figure. An exact figure would require a more detailed assessment of the School, and negotiation between the assessor, the School and Mr and Mrs Finney.

Overall, I am satisfied that a much lesser expenditure would have been necessary to accommodate Scarlett at the School.

6.12       Period of Scarlett's application for schooling at the School

Evidence from the School is that it operates on a college format, and that enrolment is for the thirteen years of school. Mrs Finney, in her evidence, recognised this to be the case. However, there is a natural pause in schooling at the end of Year 6 because of the structure of the State school system. I cannot see a persuasive reason for treating private colleges differently in this regard. Further, no-one is able to predict what the economic situation of the Finney's or the School may be in seven years time. Other factors, such as teachers, student's health, and relocation can all play a role. There must be some reassessment each year, albeit minor, as to whether a student will continue at a school. I am not therefore prepared to regard the enrolment as binding the parties further than the end of Year 6, and in my view there could be exceptions making the period even shorter in certain cases.

6.13       Information provided by Mr and Mrs Finney

I am satisfied that Mr and Mrs Finney provided the School with information concerning Scarlett's disability on a number of occasions.

Information was provided at the time of the tour of the School, in the initial application, in telephone conversations between Mrs Finney and Mr Morgan and during the interview on 26 March 1997. The names of people from whom further information could be obtained were provided to Mr Morgan, both in relation to Spina Bifida generally and Scarlett in particular. Mrs Finney also forwarded medical information about Spina Bifida as well as correspondence confirming the arrangements with the community nurse.

I am not satisfied that "repeated requests" to provide medical reports were made to Mrs Finney and "ignored" as asserted by the Respondent through Mr Morgan's evidence. Mrs Finney provided people for the School to contact in this regard, as well as the assurance of a service from the community nurse. Further medical evidence would have been of questionable value to the Respondent. What it needed was functional evidence that would have been obtained through an independent assessment of Scarlett and the School by the Sydney Children's Hospital. I am further satisfied that Mrs Finney was candid in the information she provided to the School. She did nothing more than represent her daughter in the best light, as any parent would. However, at the initial interview, she did set out Scarlett's needs, and provided a number of independent sources where this information could be checked.

6.14 Enquiries made by the School

I am satisfied that the School made various enquiries to ascertain the nature of Spina Bifida generally and the needs of Scarlett in particular. I accept Mr Morgan's evidence as to the enquiries made with the Spina Bifida Association, Scarlett's then preschool, as to nursing arrangements and one of the nurse's familiar with Scarlett, the Department of Education, the head of another local private school and with the School's own Kindergarten teachers.

However, I am not satisfied that those inquiries were appropriate in the circumstances. The literature on Spina Bifida which Mr Morgan obtained made it very clear that the implications of the disability could be quite varied. In these circumstances the School needed to consult more directly with Mrs and Mr Finney and Scarlett to assess what she could and could not do, rather than making assumptions based on general comments about people with this disability. This could have been achieved through assessment by the Kindergarten teachers, and a further interview of the Finneys. If the School were not satisfied with the information gained through this process they could have asked the Sydney Children's hospital to carry out an independent assessment - this was offered by Ms Dickson. Instead, inappropriate weight was given to some of the information obtained; for example, Ms Cadwallader's comments about the difficulties of students with Spina Bifida and possible legal risks/exposure. She had never met Scarlett, and whilst her comments may have guided the School to specific issues to investigate further, they should otherwise have been of minimal relevance. The decision was made considering a child with Spina Bifida generally rather than Scarlett in particular, and seemed to be based on a worst case scenario situation. Further, there was some confusion about how many times Scarlett needed to be catheterised at school, and this should have been clarified with Mrs Finney prior to being considered as a factor for the decision. The person most equipped to find solutions to the day-to-day problems facing a person with a disability is the person themselves. In Scarlett's case, because of her age at the time, her parents would be expected to play this role. This is self-evident when one stops and considers that they are the person faced with these issues every day. The opinion of the person with the disability should not be accepted without question because this could place respondents in very invidious positions. But the person's views should be given weight, alongside the views of experts in the field who have had a chance to assess the individual in question and form an opinion. The greatest barriers which people with a disability face in our community are the negative assumptions made about them by other members of the community.

6.15        Availability of alternate schools

I am satisfied that although an alternate public school able to accommodate Scarlett was available, an alternate private school was not available. I accept Mrs Finney's evidence that on the basis of their religious beliefs, other private schools in the area were unsuitable as the religious instruction at those schools conflicted with their own.

6.16       Benefits

The benefits associated with Scarlett attending the School include:

*       For Scarlett:

*       The School offers a wonderful and unique bushland learning environment. The setting would certainly enhance the learning process of any student, including Scarlett.

*       The multi-disciplinary approach would enhance the management skills required by Scarlett in operating within the timetable of multiple teachers and class environments.

*       The integrated Kindergarten to Year 12 campus is another attractive feature of the School.

*       The School offers activities and opportunities not available at Jasper Road Public School.

*       For the Finney family:

*       The reduced travelling time to and from school each day: whereas the School is about a ten minute drive each way from the Finneys' home, Jasper Road Public School is approximately fifteen to twenty minutes each way.

*       There are general advantages of a private school education, and importantly for Mr and Mrs Finney, a private school education in a non-denominational environment. Both Mr and Mrs Finney's daughters could have attended the School and had these advantages.

*       For the School:

*       The changes to improve the accessibility of the School to Scarlett would have improved the School for everyone using it.

*       The additional government funding would have been a benefit to the School.

*       Any additional teacher training would have meant that teachers were better qualified.

*       For the community

*       The quality of life of a community is improved by the inclusion of all persons in that community. Therefore, including Scarlett in the School community would have improved the quality of life for that community. Of course, the School community includes in this sense all of the families linked with the School, and this is therefore a much broader benefit.

*       Benefits of integrated schools and the acceptance of people with disabilities that this fosters as detailed in Mr Masters evidence.

6.17       Detriment

The detriments associated with Scarlett attending the School are:

*       Additional costs to the running of the School including additional staffing costs, such as a part-time teacher's aide. Whilst I accept that accommodating Scarlett would incur some cost to the School, it appears that the School has greatly overstated that cost. There is also some government funding available.

*       Additional capital costs for access modifications. However, as I have indicated, these would be far less than suggested by the Respondent's experts, and could be offset to some degree by government funding.

*       Modifications to the School curriculum and School environment which might undermine its distinct character being of detriment to the School as well as its existing and future students. These would appear to be minor and of little impact to the overall character of the School.

*       Possible additional costs to parents of other children at the School such as in increased fees. In this regard I note that any such detriment would be spread across a large number of persons in the same way as the costs in the case of Scott v Telstra (supra) and would thus constitute a very minor detriment to each individual or family.

*       Some extra work would be required of the teachers and teacher's aides.

7.       FINDINGS: THE LAW

7.1       Meeting the requirements of s.4 of the Act and the occurrence of direct discrimination

As stated above, I find that Scarlett has a disability for the purposes of s.4 of the Act, and that the School also meets the Act's definitional requirements. As also indicated earlier in this decision, it was not disputed that the School discriminated against the complainant, and that such discrimination was on the ground of Scarlett's disability. However, in order to proceed to further findings I must find that this discrimination did occur in breach of the Act. I do so find.

7.2       Onus of proof/extent of inquiries required

The Complainants argued that the onus of proof is on the Respondent to establish the defence of unjustifiable hardship.

However, the Complainant also submitted that the preferred course of gathering information about the needs of a student with Spina Bifida seeking enrolment is "a combined effort" between the parents and the school concerned. In this regard, it was argued that the Complainants provided all information that could reasonably be expected to be provided.

The Respondent argued that the burden of establishing that the services and facilities are required is shared between the Complainants and Respondent through an "interactive process". Further, the Respondent asserted that whereas the Respondent had fully discharged its burden, the Complainant had failed to contribute adequately and had not fully discharged its burden to engage in the "interactive process".The onus of proof clearly shifts to the respondent to establish unjustifiable hardship once the complainant has proved that discrimination occurred. As I indicated in Francey & Anor v. Hilton Hotels (supra) the allegation of discrimination must be made out before unjustifiable hardship can be assessed. At this point the onus also moves from one party to the other. Courts and Tribunals in Australia have been consistent in this approach since the commencement of disability discrimination legislation. However, I agree with the submissions of both parties that the most appropriate way to approach the process is as a "combined effort" or a "shared burden". As is clear from my findings of fact, particularly in paragraphs 6.13 and 6.14, the Complainants have "contributed their share". Input from the person with the disability, or in this case her parents, whilst not exclusively decisive, must play a very important role in any decision. The School, by its actions, prevented this from occurring. I accept the Respondent's submission that the process must be interactive, but my findings of fact are clear that the School did not carry out its primary responsibility to continue this process. In every case the exact process will be different, as various factors play a role. But an interchange of views must occur, and often an expert independent assessment is beneficial. The Respondent's approach also has less weight because it was based on assumptions which were either false or very general. This can be seen in my findings of fact at 6.1 to 6.14 inclusive. The Respondent has established, and the complainant would probably not dispute, that Scarlett did require services and facilities that would not have been required by a student without her disability. The question remaining is whether such services would cause the Respondent unjustifiable hardship.

7.3       Direct vs indirect discrimination

The Complainants noted that the defence of unjustifiable hardship is only available to an educational authority as a defence to direct discrimination, that is, to a refusal to enrol a student with a disability. However, once enrolled, the Complainants argued that any issues of discrimination are likely to be a question of indirect discrimination. In this regard, the educational authority still has some protection/defence in that it can rely on the reasonableness requirement inherent in the indirect discrimination provisions.

I accept the complainant's arguments in this regard. It is clear from the s. 22(4) of the Act that the unjustifiable hardship provision only applies to refusal of enrolment. My comments in paragraph 6.12 are relevant to this finding. Throughout the school life of any child with a disability, whilst they are entitled to expect the provision of a reasonable level of services from an educational authority, such provision will always be the subject of a degree of negotiation. This is because the services, due to the nature of the disability, are unusual, and every educational authority must assess the services it provides in the overall context of its budget and resources. If negotiations break down during the educational process, the complainant could choose to lodge a complaint under the Act, and would allege indirect discrimination. The educational authority could then rely on the reasonableness provision. This approach supports my finding in paragraph 6.12, as it provides a mechanism for resolution of complaints if other avenues fail. Whilst it could be argued that my finding in paragraph 6.12 is somewhat arbitrary in the case of this school, the factors which could impact on a longer enrolment period are so many and so diverse that they would make the thirteen year enrolment very unfair on both parties.

7.4       Relevant period of consideration for the application for enrolment

The Complainants argued that Scarlett's application for enrolment was for Kindergarten only, or alternatively, Kindergarten to Year 6 only. Therefore the relevant period for consideration as to the services and facilities required by Scarlett should be for one, or alternatively, six years.

The Respondent argued that Scarlett's application for enrolment was for the entire thirteen years of schooling available at the School. The relevant period for consideration would therefore be the thirteen years from Kindergarten to Year 12.My findings on this issue are covered in paragraph 6.12 and in the above paragraph. This is a matter of fact not law. To apply a longer period would unfairly weight the unjustifiable hardship decision against the Complainants, because I would be required to take into account possible services which may or may not be needed up to thirteen years into the future. To do so I would have to make many assumptions, most of which would have little basis in fact.

7.5       Extent and sufficiency of assessment required

The Complainants argued that nothing less than a full assessment by a team of experts of Scarlett and of the services and facilities at the School was required. It was argued that the investigation by the School was inadequate, reflected an unnecessarily negative view and was based on stereotypes and prejudices rather than Scarlett's needs.

The Respondent argued that an adequate assessment was made and any further enquiries would have led to the same conclusion. Further, the Respondent argued that the Act did not impose an obligation to obtain an assessment. It was argued that Mrs Finney failed to provide a complete picture of Scarlett's needs or all the information requested and underplayed the services and facilities that would be required.My findings of fact have already indicated my views on this issue. Whilst I accept the Respondent's submission that the Act does not place an obligation on the respondent to carry out an assessment in every case, I am satisfied that in this case such an assessment would have been very beneficial. No clear assessment was carried out by the experts prior to the hearing. Dr West visited the School, but has not seen Scarlett for some time. Whilst her opinion was generally not in support of Scarlett attending the School, it was not unequivocal. Ms Gilbert had not visited the School, although she knew Scarlett and her disability quite well. Ms Dickson assessed the School, but had not completed her assessment of Scarlett, and had not formally seen her for about eight months. Both supported Scarlett's attendance at the School.


It should be added that the final decision does not rest with the "experts". The School is not able to avoid its decision-making obligations by simply accepting their opinion - Sloey v. State Transit Authority (unreported, ADEOT, 18 June 1998). My consideration of the evidence must therefore be made from the position that an adequate assessment was not carried out and I do not accept the Respondent's argument that this occurred. As already indicated, I accept the Complainants' view that the School's decision was based on negative or worst case scenario assumptions. They were also general or stereotypical assumptions rather than made about Scarlett in particular. I do not accept that any further assessment would have led to the same conclusion because of my views on how the Respondent's conclusion was reached. Also, I have already rejected the Respondent's view of Mrs Finney's contribution.

7.6       Unjustifiable Hardship

The Respondent argued that it had established that providing the services and facilities required by Scarlett amounted to unjustifiable hardship on the School. Accordingly, the discrimination which occurred in refusing her application to the School was not unlawful.

The Complainants argued that the defence of unjustifiable hardship was not made out and the discrimination of the School was therefore unlawful.

As set out in the decision of Scott v. Telstra (supra) the concept of "unjustifiable hardship" connotes much more than just hardship on the respondent. The objects of the Act make it clear that elimination of discrimination as far as possible is the legislation's purpose. Considered in this context, it is reasonable to expect that the School should have to undergo some hardship in accepting Scarlett's enrolment. It is clear from the evidence that this would have occurred, as Scarlett required services and facilities not required by other students. The nub of the issue is whether such hardship was unjustifiable. In paragraph 6.16 and 6.17 I have set out the benefits and detriments to all concerned, including the effects of Scarlett's disability and the financial implications for the School. Determination of this question requires me to decide if, in the context of these benefits and detriments, the hardship caused would have been unjustifiable. I find the defence of unjustifiable hardship has not been made out by the School. I am satisfied that, when all of my findings of fact are weighed, it would not have been unjustifiable for the School to have enrolled Scarlett as a student in Kindergarten in 1998. In making this finding I do not accept many of the conclusions which the School drew in the process of making its decision. It follows that the direct discrimination which occurred (as admitted by the Respondent) in refusing Scarlett's application for enrolment at the School, is not vindicated by the exception of unjustifiable hardship.

8.       RELIEFHaving found that the Hills Grammar School discriminated against Bernadette and Scott Finney on the grounds of Scarlett Finney's disability in breach of the Act, I am next required to determine what, if any, relief to award to the Complainant's pursuant to s. 103(b) of the Act. Before giving my declarations I wish to make several observations. I am satisfied that Bernadette and Scott Finney chose the Hills Grammar School for their daughter Scarlett not just because it was the only private school available to them in their area. They chose it because of its unique bushland environment and curriculum opportunities. They felt that it would provide an excellent education for both their daughters in an idyllic setting. I am also satisfied that Mr Phipps and Mr Morgan, the decision makers for the School, made a decision that was genuine but misguided. Their decision, based on general and often flawed assumptions, was that the School did not have the capacity to provide Scarlett with an education because of her disability. The case was energetically and appropriately argued on both sides, and gained a large amount of media coverage and public interest. Whilst it is clearly the role of this Commission to make determinations and appropriate declarations flowing from them, it is also our role to find solutions to disputes which remove discrimination on the grounds of disability, and provide an opportunity for greater participation of people with a disability in our community. This is pursuant to ss. 3 and 93 of the Act. In my view these aims would be best served by providing the parties with an opportunity to meet and discuss the most appropriate resolution, knowing that I have determined that unlawful discrimination has taken place. Such a resolution may involve the provision of compensation, an opportunity, if still sought, for Scarlett to attend the Hills Grammar School in the future and other matters which the parties may determine.

An officer of the Commission is, of course, available to assist in these discussions. Accordingly, I will not make any declarations for 28 days from today's date. During that time I encourage the parties to meet and discuss solutions. Should a settlement of the matter be arrived at I will, within my capacity to do so, make declarations to put that settlement into effect. If no settlement is reached within that time I will make declarations which I regard as appropriate.

9.        DIRECTIONS

I direct that this inquiry is adjourned, and set down for further declarations on 17 August 1999, unless an earlier date is agreed by both parties.

Dated this 20th day of July 1999

GRAEME INNES Hearing Commissioner