Review of disability standards for education 2005

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Children with Disability Australia

Children with Disability Australia (CDA) is the national peak body that represents children and young people with disability and their families. The organisation is primarily funded through the Department of Families, Housing, Communities and Indigenous Affairs (FaHCSIA) and is a not for profit, community based organisation.

The organisation represents children and young people aged 0-25 as an advocacy body with the mandate of building respect, recognition and inclusion for ‘kids’ with disability. CDA works alongside families of children and young people with disability and has a membership of approximately 5000 members nationally.

Vision

To provide children and young people with disability the opportunity to live meaningful and fulfilling lives within safe, supportive and appropriate environments. CDA achieves this vision by:

Educating national public policy-makers and the broader community about the needs of children and young people with disability and their families.
Advocating on behalf of children and young people with disability to ensure individual choices and the best possible support and services are available to them from government and the community.
Informing families about the rights and entitlements of the child and young people with disability to services and support.
Celebrating the successes and achievements of children and young people with disability.
CDA acknowledges the critical role that families play in providing the necessary care and support to children and young people with disability and recognises their need to be supported in this role.

Guiding principles

Children the priority: that the safety and well-being of children and young people with disability is paramount and consistent with Australia’s obligations under the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities.

Respect: for the views and interests of children and young people with disability and their families.

Recognition: for contributions made by families to ensure the safety and well being of children and young people with disability.

Inclusion: to ensure that children and young people with all types of disability, from all cultural and religious backgrounds and different family structures are supported by the work of CDA.

Responsiveness: to ensure that full advantage is taken of strategic opportunities that arise from the political and social policy environment that benefit children and young people with disability.

Collaboration: with relevant non-government, government and private sector partners to promote the interests of children and young people with disability.

Transparency: within CDA’s governance structures, decision-making processes, financial expenditure and reporting.

Introduction

The present education system is not adequately meeting the needs of many students with disability. CDA is of the view that the disability standards for education have not met their stated objectives.

The Senate Inquiry (2002) by the Employment, Workplace Relations and Education Reference Committee into education of students with disabilities reported that “quality education for students with disabilities is a scarce commodity in schools generally. A picture has emerged of students affected by disabilities taught in many cases by teachers unskilled or lacking confidence in their ability to involve them in the full curriculum, resulting in these students performing at less than their full capability and being regarded as marginal participants in the activities in the school community. Evidence also indicates that there is a considerable level of unmet need, especially in the area of learning disability. It was also reported that children and parents are not being given the support that they need in the education system……..This is a human rights issue of considerable significance.”

The Committee recommended (Recommendation 17) that the “Attorney-General formulate the Disability Standards for Education 2002, under paragraph 31 (1) (b) of the Disability Discrimination Act 1992.”

The objects of the Disability Standards for Education 2005 are:

to eliminate, as far as possible, the discrimination against persons on the ground of disability in the area of education and training: and

to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law in the area of education and training as the rest of the community; and

to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.

CDA believes the observations made by the Senate Inquiry in 2002 remain an accurate description of the educational experience of many students with disability and their families in Australia today. Despite the implementation of the Disability Standards and their intent, as clearly stipulated in the above objectives, education continues to be an extremely significant area of concern for students with disability and their families. Many families report that, through their education experiences, their children are subjected to: limited opportunities; low expectations; exclusion; bullying; discrimination; assault and violation of human rights.

Increasingly families of children with disability are successfully pursuing legal action against state education departments to have the educational needs of their children recognised and met. In some instances families are taking their cases to the Australian Human Right’s Commission to pursue legal action for breaches of human rights against their children.

Many education providers are also genuinely concerned that they are unable to meet the needs of children with disability due to the lack of funding, lack of trained teachers and support provided by education authorities. It is of great concern to CDA that state and territory governments continue to settle legal cases without addressing the systemic issues they raise.

Feedback provided throughout this submission is based on the experiences of members that has been reported to the organisation over several years. Education has been one of the most dominant issues of concern for members since the inception of our organisation in 1992 (CDA was formally called the Australian Association of Families of Children with a Disability – AAFCD).

Recently CDA requested families share their educational experiences as part of a separate report it is preparing regarding education. The contributions received reflect appalling experiences of discrimination, inadequate and inflexible funding and a system that is failing to recognise the educational rights of far too many children and young people with disability. The quotes below aptly reflect an inadequate education system for children with disability.

“Every promise of support and modification has yet to be delivered.”

“My son was never given the opportunity to reach his full potential.”

“My child is clearly not quite as entitled to education as the kid next door.”

“Sometimes the hardest thing about disability is expecting support but ending up with yet another time consuming fight.”

“I don't have anything good to say about our son’s education except it gave the family "free child care.”

CDA welcomes the opportunity to provide feedback to the Review of Disability Standards 2005.

Question 1 - providing clarity

Are the Standards easy to understand or are there parts that require clarification?

CDA believes the purpose of the Standards being ‘to ensure that students with disability should be able to access and participate in education on the same basis as other students’ is clear. The ‘parts’ contained within the standards cover the breadth of considerations relevant to students with disability and their right to access education on the same basis as other students.

Is the format of the Standards useful for understanding rights and requirements under each of the Standards?

The format used whereby the part, obligations and measures are articulated for each standard is viewed as adequate. It allows the reader to obtain an adequate understanding of their rights and requirements and the application of these to educational experiences.

Are the terms used in the Standards clear to users and providers?

It is believed that it is necessary to provide clarification and definitions for terms used within the standards which can at present be broadly interpreted. In particular this is relevant to the use of the words ‘consult’ and ‘participate’

There are different perceptions of the word consult. It is the experience of CDA that consultation often does not occur or can be construed very broadly. For example, a short phone call informing a family of a significant change to their child’s education program has been seen as consultation.

Families of students with disability have a key role to play in relation to providing information regarding assessment of educational needs, formulating individual learning plans, learning styles and general information pertaining to the needs of their child. Family experience must inform educational programs of students with disability. Best practice in relation to students with disability is viewed as a collaborative approach between the student, family, education providers and other professionals involved, i.e. consultation.

A frequent concern articulated by families of students with disability is a perceived inadequacy to identify the need or type of educational support required by their children. This concern is voiced in reference to teachers, principals and state and territory educational authorities

It is a typical experience to have concerns ignored or not addressed due to lack of understanding, funding and a systemic lack of will to work towards providing maximum educational opportunities for students with disability. Parents often raise concerns with teachers, principals, regions, educational authorities and members of parliament to no avail.

In addition to the requirement in the Standards to consult, it is stated in the Family-School Partnerships Framework (DEEWR, 2008) that “research demonstrates that effective schools have high levels of parental and community involvement. The involvement is strongly related to improved student learning, attendance and behaviour. Family involvement can have a major impact on student learning, regardless of the social or cultural background of the family.”

Recommendations

A definition of ‘consult’ is included in the Standards as well as direction as to when it should occur.

The Standards include a requirement that all students with disability have an individual education plan which cannot be enacted without the signed consent of the student or their representative.

Further clarification of what constitutes ‘participation’ is also needed. It is the experience of CDA that many students with disability may often have a physical presence in an educational setting but are often denied opportunities to participate in curriculum. It is still common for students with disability in mainstream settings to have a completely different curriculum rather than a modified curriculum.

It is also common for specialist units or baserooms to exist for students with disability within mainstream schools and for there to be no or little opportunity for inclusion in the wider school community.

A student in year 8 spoke of students who are in a base room at his secondary school. “These kids are referred to as ‘the (name of school)’s. I have two brothers with disability so I could guess that these kids had disabilities as well. I was upset and worried because my mates laugh at these kids, tease them and have nothing to do with them. No-one has ever talked to us about these kids and explained what’s going on for them or said what extra support they need. I’m pretty used to disability but to be honest I’m scared of these kids. We just need the opportunity to talk and some support to get to know these kids.”

It is often reported that students with disability are excluded from participation in school camps, performances and some activities. At times this is because funding is not available to provide the support required. In other instances, exclusion occurs because there is a presumption that a student cannot participate or a lack of will or expertise to modify the activity to ensure the inclusion of a student with disability.

Recommendation

Clarification of ‘participation’ is included to ensure that it is not presumed that students with disability ‘participate’ in an education program simply because they have a physical presence.

Are there any parts of the Standards that need additional explanation or details of where to find additional information?

It is the experience of CDA that the knowledge regarding the existence of the Disability Standards for Education amongst students, families, teachers and Principals is extremely poor.

It is usually the case that members of CDA are unaware of the existence of the Standards and thus usually ignorant regarding the rights and protection afforded to students with disability though the Standards. Typically, if members are aware of the existence of the Standards it is often the case that there is limited knowledge of how they will assist their child with disability.

CDA recently surveyed its members as part of a strategic planning consultation. Rights and entitlements in relation to education were identified by members as a key area about which they wanted more information.

It is stated in the Ministers’ Forward to the Standards that the ‘Australian Government will contribute to the development of professional development materials for education institutions to support the implementation of the Education Standards’. It is unclear what practical implementation this involved but it would appear it has been extremely unsuccessful given the extent of ignorance reported by education providers regarding the existence of the standards.

It is also often mistakenly presumed by schools that specific supports and assistance should only be provided to students who receive funding under disability education programs and not to students with disability as defined within the Disability Discrimination Act 1992.

A member was recently discussing with a secondary school the additional supports required for her son who would be commencing Year 7 the following year. The school were hesitant to meet until the outcome of a funding application was known. The school believed that obtaining a successful outcome would dictate what responsibilities they had in relation to the provision of specific or additional educational supports and strategies.

Recommendations

Mandatory training and professional development of all staff of education authorities, state and federal education departments and education providers on relevant human rights, legislation and disability education standards.

Provision of a copy of the Standards to all families/carers of students with disability.

Establishment of website which details educational rights & entitlements of students with disability.

That provision of funding to educational authorities be contingent on the establishment of an action plan detailing how education providers will be informed and receive professional development on the responsibilities under the Standards.

Development of a system which records known breaches of disability education standards and informs Department of Employment, Education & Workplace Relations of these breaches. There should be a mandatory requirement that action be taken to address identified systemic issues of concern.

Question 2 - rights under the standards

Are you aware of your rights to enrol, access support and participate in education and training?

Please refer to questions 1(c) and (d) of this submission.

Parents of children with disability often report that before their child started school they were not provided with enough information about schooling options for their children with regard to choices of schooling. A system must be implemented that ensures families can make informed choices in relation to the schooling options for their child. This should include information regarding the funding and support available, application processes and requirements and what types of support are available in different school settings. This type of information should also be available to families when students are transitioning to secondary school.

Access is often construed as only applicable to issues regarding physical disability. It is the view of CDA that more training, expertise and funding be available to ensure that other areas relating to the identification and application of issues concerning access to educational programs is possible.

For example, it is necessary for a Year 7 student to complete the majority of his work on a laptop due to difficulties he has with fine motor skills which impact on his speed, legibility and effort required to write. The school could not make a computer available for him. It was the expectation that his parents purchase a laptop and associated software (Microsoft Word). The parents informed the school of their obligations under the Standards and the school offered to pay half the costs of the software. There was also no capacity for the student to obtain the software through the multi-user arrangement the school had purchased because the school did not own the computer.

Are you aware that these rights are protected under the Disability Standards for Education 2005?

Please refer to question 1(d) of this submission.

Where did you find out about the Standards?

Most families seem to ‘stumble’ across the Standards. There appears to be no systemic process which ensures students & families are informed that the Standards exist. No member has ever reported to CDA that an education provider has informed them of the existence of the Standards.

Recommendations

Establishment of a national website and associated telephone service, which is independent of educational authorities, which provides information on the Standards, and school options for students with disability.

Question 3 - access to education and training opportunities

Have you or a person you know with disability, experienced difficulties enrolling in an educational institution or participating in educational activities on the same basis as people without disability? If so, why do you think this occurred?

Families are often directly told that their child is unable to attend a school because of the child’s disability or they are left with a feeling that their child would be such an inordinate burden on a particular school that they seek other options. Another common occurrence is that funding only allows a student to attend part-time. This is the clearest example of discrimination against students with disabilities.

The reality for many students with disability is that they cannot go to their local school because the school cannot meet their needs or they don’t want them. Parents often feel they have no option but to send their child to a specialist disability school.

Recently a family reported that in a meeting with their son’s inclusion support co-ordinator they were told that their son had no option but to go to a special school for his secondary education as he would not continue to be supported in a mainstream setting.

It needs to be recognised that the difficulty of obtaining adequate funding to support children with disability plays a big part in this scenario. Please see Appendix A for a copy of CDA’s submission to the Review of Funding for Schooling.

Please describe any instances where the Standards have enabled someone with disability to access education and training opportunities.

CDA is aware of numerous court cases where the Standards have been used to obtain equal access and support for students with disability on the same basis as students without disability. Very rarely has CDA been made aware of the Standards being used at a school provider level to ensure this same access.

Are the provisions for consultation and reasonable adjustment clear and adequate?

The provisions for both consultation and reasonable adjustment are unclear and inadequate under the Standards.

Please see question 1(c) of this submission for discussion on the need for clarification & definition of ‘consultation’.

The provision for reasonable adjustment under the Standards also needs further clarification as the term can be interpreted too broadly. This is particularly relevant in relation to reasonable adjustments that would impose “unjustifiable hardship” on education providers. Education providers often state that they are unable to make a reasonable adjustment because of lack of funding support for the student. As a result situations arise such as those where children are only allowed to attend school part-time because the schools will not or are unable to provide the additional funding for the support required.

The submission to this Review by the Disability Discrimination Legal Services (DDLS) discusses the provisions for consultation and reasonable adjustment as described in the Standards. CDA endorses the comments and recommendations DDLS provides in its submission for these provisions.

Question 4 - eliminating discrimination

a) Describe any instances where the introduction of the Standards played a part in eliminating discrimination experienced by a person with disability in an educational setting?

Please see question 3.

How could the Standards be improved to help prevent a person with disability from experiencing discrimination, harassment or victimisation in an educational setting? If possible please provide an example.

This question is addressed in other responses included in this submission.

Question 5 - awareness and recognition

Do you think the Standards have raised awareness and increased understanding of the issues affecting people with disability and their rights to access and participate in education and training?

Despite Australia being a party to international human rights treaties, and the existence of State and Commonwealth discrimination legislation and the existence of the Disability Standards for Education, education remains one of the most significant issues of concern for children with disability and their families. At best families of children with disability believe that their children have limited opportunities to be enriched and extended through education and that the present system is awash with low expectations and standards for students. At worst, parents are concerned about treatment that could arguably breach the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984. Reports of children being locked in "time out" rooms come uncomfortably close to false imprisonment. Reports of physical restraint and manhandling approach assault, and do not seem to be supported by departmental policy.

In 2009, it was estimated that 492,500 children and young people aged 0-24 years (6.8% of all children and young people aged 0-24 years) in Australia had a disability. Of these, 323,800 children and young people aged 5-24 years were reported as having a schooling or employment restriction (Australian Bureau of Statistics 2010).

The most recent statistical data (Australian Bureau of Statistics 2004) supports reported family experiences of children with disability and illustrates that there is a significant gap between educational outcomes of children with disability and those without disability:

29.6 per cent of people aged 15 to 64 years with reported disability had completed Year 12 compared to 49.3 per cent of people without a disability.

12.7 per cent of people with a disability had completed a bachelor degree or higher compared to 19.7 per cent of people without a disability.

53 per cent of people with a disability participated in the labour force compared to 81 per cent of people without a disability.

8.6 per cent of people with disability were unemployed compared to 5 per cent of people without disability

Further data indicates that an estimated 110,300 students with disabilities were not provided with any special support in school (43% of students with disabilities). Of the 110,300 students not provided with any special support, 55% did not experience any difficulties in school and 45% did.(Australian Institute of Health and Welfare 2006).

The inadequacies of the education system for students with disability and the need for reform have been documented over a number of years. Various reports commissioned by the Australian Government highlight the issue. These include but are not limited to the following:

“Education of students with disabilities” (2002) Commonwealth of Australia, Senate Inquiry

“Investigating the Feasibility of Portable Funding for Students with Disabilities” (2007) Monash University.

“Making Progress” (2008) Australian Institute of Health and Welfare

“Shut Out” (2009) National People with Disabilities and Carers Council

These figures and experiences demonstrate that the Standards have been unsuccessful in raising awareness and increasing understanding of the issues affecting people with disability and their rights to access and participate in education and training

It is the view of CDA that the Standards have the potential to be a powerful tool for this purpose. This is contingent on further clarification of the definitions and clarification regarding the terms mentioned previously in this submission. It is also vital that a national awareness campaign of the Standards being established for education authorities, education providers and students with disability and their families. Finally, compliance with the Standards must be linked with funding as there needs to be clear consequences linked to realising the rights and entitlements for students with disability according to the Standards.

Question 6 - compatibility with current education system

a) Are there any current education or training issues that are not covered by the Standards but should be?

As per question 1(a) CDA believes the purpose of the Standards being ‘to ensure that students with disability should be able to access and participate in education on the same basis as other students’ is clear. The ‘parts’ contained within the standards cover the breadth of considerations relevant to students with disability and their right to access education on the same basis as other students.

Are you aware of any educational institutions that are not covered by the list in Part 1.5 of the Standards?

Summary of key recommendations

A definition of ‘consult’ is included in the Standards as well as direction as to when it should occur.

The Standards include a requirement that all students with disability have an individual education plan which cannot be enacted without the signed consent of the student or their representative.

Provision of a copy of the Standards to all families/carers of students with disability.

Establishment of website which details educational rights & entitlements of students with disability.

References

Australian Bureau of Statistics 2010, Disability, Ageing and Carers, Australia: Summary of findings 2009, Cat. No. 4430.0, Australian Bureau of Statistics, Canberra, viewed 24/5/2011 http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/9C2B94626F0FAC62CA2577FA0011C431/$File/44300_2009.pdf

Australian Bureau of Statistics 2004, Disability, Ageing and Carers, Australia: Summary of findings 2003, Cat. No. 4430.0, Australian Bureau of Statistics, Canberra, viewed 24/5/2011 http://www.ausstats.abs.gov.au/Ausstats/subscriber.nsf/0/978A7C78CC11B702CA256F0F007B1311/$File/44300_2003.pdf

Australian Institute of Health and Welfare (AIHW) 2008, Making Progress: The health, development and wellbeing of Australia's children and young people, AIHW, Canberra.

Commonwealth of Australia 2005, Disability Standards for Education 2005, Canberra, Australia. Viewed 24/5/2011 http://www.deewr.gov.au/Schooling/Programs/Documents/Disability_Standards_for_Education_2005_pdf.pdf

Commonwealth of Australia - Employment, Workplace Relations and Education References Committee 2002, Education of students with disabilities, Australian Senate Inquiry, Canberra, Australia

Department of Education, Science and Training (DEST) 2007, Investigating the Feasibility of Portable Funding for Students with Disabilities, prepared by Ferrier F, Long M, Moore D, Sharpley C and Sigafoos J, Faculty of Education, Monash University, Victoria

National People with Disabilities and Carers Council 2009, Shut Out: The Experience of People with Disabilities and their Families in Australia, Canberra, Australia.

Office of the United Nations High Commissioner for Human Rights 1989, Convention on the Rights of the Child 1989, viewed 24/5/2011 http://www2.ohchr.org/english/law/crc.htm

United Nations 2006, Convention on the Rights of Persons with Disabilities 2006, Viewed 24/5/2011 http://www.un.org/disabilities/convention/conventionfull.shtml

United Nations 1984, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, viewed 24/5/2011 http://www.hrweb.org/legal/cat.html