LawSense Managing Student Disability – Denying Enrolment, Implementing Adjustments & Discipline

Register

Program

12.00    LawSense Welcome

12.05    Chairperson’s Introduction

Dr David Nockles, Headmaster, Macarthur Anglican School; Branch Chair, AHISA NSW

12.10    Declining Enrolment of a Student with A Disability – Examining Unjustifiable Hardship, Declining for Non-Disclosure and Options for “Conditional” Enrolment

Current Legal Framework

• Reviewing the current laws affecting enrolment of students with a disability in schools and potential reform
• Understanding current interpretations of disability laws, including the implications of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability

Declining Enrolment Based on Unjustifiable Hardship

• Examining when you can decline enrolment for unjustifiable hardship. What is ’unjustifiable’?
• Balancing the impact on:

• other students – to what extent does this factor into ‘unjustifiable hardship’ or ‘reasonable’ adjustments?
• impacts on staff – understanding what to consider

• • factoring in limitations on resources as a result of already supporting a number of students with a disability

Parents Not Disclosing or Not Concerned About Meeting Educational Needs

• Exploring discrimination obligations and options to decline enrolment where:

• you consider the parents/guardian are not cooperating or providing adequate information

• • the parents/guardian do not care if you are unable to meet the educational needs or curriculum regarding the student, but just want them to be able to attend school

Disability Emerging After a Place Offered but Prior to Commencement

• Understanding obligations where a place has been offered, but the student develops a disability prior to commencing school

Disability Advocates

• Dealing effectively with disability advocates

Implementing Effective Documentation, Including Review or “Sunset” Clauses

• Entering into a pre-enrolment contract with the parents requiring provision of all relevant information
• Including options to review a student’s enrolment after a period of time
• Examining key questions you should include
• Examining best practice documentation and communication to support your decision to decline enrolment

Ben Tallboys, Principal, Russell Kennedy Lawyers; Legal Counsel, Association of Heads of Independent Schools of Australia (AHISA)

1.10      Break

1.25      Student Disability Emerging After Enrolment – Navigating Rights, Obligations and Reasonable Adjustments

Rights, Obligations and Non-Disclosure

• Examining the rights and obligations of the school in dealing with disabilities emerging after enrolment, including obligations to provide reasonable adjustments
• Understanding your options where the student had the disability prior to enrolment, but parents did not disclose it

Reasonable Adjustments – Rights of the School to Determine Adjustments Versus Experts

• Understanding the rights and responsibilities of the school versus health experts to determine what the student requires to meet the diagnosis or disability

Information You Should Collect

• Exploring optimum information collection – what information should you seek from whom
• Dealing with reports from external professionals provided by the parents or advocates. When should you obtain your own professional evidence?

Extent of Consultation Required

• Examining what constitutes a reasonable level of consultation. What information should be communicated to parents?

Reasonable Adjustments – Determining What is “Reasonable”

• Determining the limits of reasonable adjustments required in each circumstance:
  • balancing impacts on other students and staff
  • managing experts: responding to experts, briefing, and managing school experts
  • assessing unjustifiable hardship
• Documenting steps and decision making regarding reasonable adjustments to ensure compliance and optimise your legal position

Reasonable Adjustments – Determining What is “Reasonable” – Case Studies

• Learning from case studies and examples:
  • ADD/ADHD and similar conditions
  • Activities, excursions and trips
  • Learning disabilities, including the student having difficulties to access the curriculum at a certain level
  • Adjustments for exams

Dealing with Challenging Scenarios

• Balancing the reasonable workload of teachers with reasonable adjustments, for example where the reasonable adjustment results in high parent contact with long daily emails
• Managing differences in views between experts, parents and the school about adjustments
• Assessing whether you are required to provide one-on-one support
• Asking parents to cover some of the costs
• Managing circumstances where parents do not wish adjustments to be made or are not engaging with the issue
• An expert report suggests certain adjustments, but the school has no evidence of the student needing the adjustments
• Managing therapists attending classes to observe a student, including privacy issues and therapist reporting on issues outside the scope of visiting arrangements

Erin McCarthy, Partner, Piper Alderman

2.25      Break

2.40      Navigating Grey Areas in Applying School Rules, Discipline, Suspension or Expulsion of Students with a Disability

Navigating Application of School Rules, Including Uniform / Dress Rules

• Exploring scenarios where schools are asked to make exceptions to rules due to disability, including uniforms/dress requirements, wearing of jewellery and makeup
• Understanding the extent to which schools can enforce rules without breaching discrimination laws

Case Studies: Discipline, Suspensions and Expulsions Where the Student Has a Disability Affecting Behaviour

• Outlining and balancing key laws applying to suspensions and expulsion of students with a disability affecting behaviour:
  • laws applying to student rights and procedural fairness
  • obligations to staff, including WHS and other obligations
• School discipline examples and case studies – assessing and navigating options:
  • managing ongoing discipline of a student with behavioural disability issues
  • navigating suspensions, including assessing how long the student should be excluded
  • expulsion of a student with behavioural disability – key considerations and navigating pitfalls
• Effectively documenting steps, communications, and decisions regarding expulsions to protect your legal position

Insights in Managing Commission/Tribunal Proceedings Brought Against a School

• Understanding key aspects and the extent of evidence, including staff witness evidence, required in defending a claim
• Exploring and balancing all potential risks for the school and settlement options
• Practical insights and experiences in settling claims

Jennifer Patterson, Partner, MinterEllison

3.55      Closing Remarks from the Chair

4.00      Event Close

Presenters / panelists include:

	Ben Tallboys provides sector-specific, practical legal solutions to schools across Australia. Ben is a passionate and effective advocate for principals dealing with complex matters relating to parents, staff and students, as well as their own employment.
	Erin McCarthy has over fifteen years’ experience in providing advice to employers and employer associations on all aspects of occupational health and safety, employment and industrial relations law as well as delivering essential information seminars and training workshops on key employment issues. As a part of a national team, Erin advises clients in all states and territories in Australia.
	Jen Patterson has extensive experience as an industrial relations, employment and WHS law advisor. Jen has particular expertise advising schools. She has acted for the Association of Independent Schools in NSW for more than 20 years and sits on their Employee Relations Committee. Jen was the lead adviser to the AISNSW on industrial strategy for its member schools following the two most recent legislative reforms.

Terms & Conditions