Inquiry into students with disability or special needs in New South Wales schools

Poor experiences and outcomes are common 

These examples reported to CYDA reflect the broad range of poor experiences and outcomes that commonly characterise the education experiences of students with disability in New South Wales (NSW): 

Students with disability contend with profound barriers and disadvantage within the NSW education system. A typical education experience for students with disability involves discrimination, limited or no funding for support, inadequate expertise of staff, a systemic culture of low expectations, exclusion and bullying. There are also increasing incidents of restraint and seclusion reported to Children and Young People with Disability Australia (CYDA). 

In recent years there have been a range of reforms, programs or initiatives impacting students with disability that have been implemented at the state and Commonwealth level. Despite this, CYDA has observed minimal improvements in the education experiences of students with disability in NSW. 

CYDA also notes that there have been numerous previous state and Commonwealth inquiries that have clearly articulated the current experiences and barriers faced by students with disability, yet meaningful change has not yet occurred. While this latest inquiry into Students with a Disability or Special Needs in NSW Schools is welcomed, it is critical that meaningful and embedded reform to the education system occurs to ensure it can adequately meet the needs of students with disability. Further, it is imperative that this reform is informed by the direct experiences of students with disability, relevant human rights frameworks and legislation and available evidence regarding best practice. 

This submission will draw on CYDA’s extensive body of work regarding education, with a specific focus on the NSW experience. 

Children and Young People with Disability Australia 

CYDA is the national representative organisation for children and young people with disability, aged 0 to 25 years. The organisation is primarily funded through the Australian Government Department of Social Services and is a not for profit organisation. CYDA has a national membership of 5300. 

CYDA provides a link between the direct experiences of children and young people with disability to federal government and other key stakeholders. This link is essential for the creation of a true appreciation of the experiences and challenges faced by children and young people with disability. 

CYDA’s vision is that children and young people with disability living in Australia are afforded every opportunity to thrive, achieve their potential and that their rights and interests as individuals, members of a family and their community are met. 

CYDA’s purpose is to advocate systemically at the national level for the rights and interests of all children and young people with disability living in Australia and it undertakes the following to achieve its purpose: 

• Listen and respond to the voices and experiences of children and young people with disability;
• Advocate for children and young people with disability for equal opportunities, participation and inclusion in the Australian community;
• Educate national public policy makers and the broader community about the experiences of children and young people with disability;
• Inform children and young people with disability, their families and care givers about their citizenship rights and entitlements; and
• Celebrate the successes and achievements of children and young people with disability. 

CYDA has undertaken extensive advocacy to progress greater understanding and awareness of the direct experiences of students with disability and the critical need for reform in education. This has included direct representation to governments and ministers, participation in related advisory bodies, contribution to a range of national and state based inquiries and consultations, provision of numerous policy submissions and reports, publication of issues papers and hosting a range of events.[1] In addition, CYDA conducts an annual national survey on the education experiences of students with disability. A summary of the 2016 national results is provided for the Committee’s consideration (see Appendix A). 

Human rights and legal context 

The United Nations Convention on the Rights of Persons with Disability 2006 (CRPD) and the Convention on the Rights of the Child 1989 (CRC) clearly establish the right of children and young people with disability to receive a quality, free and inclusive education.[2] Australia has signed and ratified both of these international human rights treaties, thereby demonstrating its commitment to protect and respect the rights, standards and obligations contained in both international treaties.

The CRPD refers in article seven to the obligation of “State Parties to take all necessary measures to ensure the full enjoyment of children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.”[3] Article 24 specifically relates to education:

State Parties recognize the rights of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, State Parties shall ensure an inclusive education system at all levels and lifelong learning directed to: 

The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental rights and human diversity;

The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential; and

Enabling persons with disabilities to participate effectively in a free society.[4] 

In 2016 the United Nations Committee on the Rights of Persons with Disabilities adopted the General Comment on the Right to Inclusive Education. This General Comment provides a detailed explanation and definition of article 24 of the CRPD. As a signatory to the CRPD, the Comment is a critical reference for Australia which articulates actions that should be taken to afford this right to students with disability. 

The General Comment states that inclusive education “focuses on the full and effective participation, accessibility, attendance and achievement of all students, especially those who, for different reasons, are excluded or at risk of being marginalised. Inclusive education involves access to and progress in high-quality formal and informal education without discrimination.”[5] Inclusion is defined as a: 

(Process) of systemic reform embodying changes and modifications in content, teaching methods, approaches, structures and strategies in education to overcome barriers with a vision serving to provide all students of the relevant age range with an equitable and participatory learning experience and the environment that best corresponds to their requirements and preferences.[6] 

The General Comment also articulates the “specific and continuing obligation to move as move as expeditiously and effectively as possible” towards realisation of article 24. In particular, CYDA would like to highlight the following actions included in the Comment that will contribute to the implementation of the right to inclusive education: 

States parties must ensure a comprehensive and inter-sectoral commitment to inclusive education across government;[7]

States parties, at every level, must implement or introduce legislation, based on the human rights model of disability that fully complies with article 24;[8]

A comprehensive and co-ordinated legislative and policy framework for inclusive education must be introduced, together with a clear and adequate time frame for implementation and sanctions for violations;[9]

Legislation must be supported by an Education Sector Plan, developed in consultation with (representative organisations for children with disability), including children, and detailing the process for the implementation of an inclusive education system;[10]

States parties must collect appropriate disaggregated data to formulate policies, plans and programmes to fulfil their obligations under Article 24; [11] and

State parties must commit sufficient financial and human resources throughout the development of Education Sector and cross-sector Plans to support the implementation of inclusive education, consistent with progressive realization.[12] 

Inclusive education, despite being a right, is far from being a reality for most students with disability in Australia. It is critical that all levels of government in Australia commit to a reform agenda that includes clearly defined mechanisms to ensure progressive realisation of the right to inclusive education for students with disability.

Australia has also implemented domestic legislation and policy aimed at upholding the human rights of children and young people with disability. The Disability Discrimination Act 1992 (DDA) is the primary legislative mechanism for eliminating discrimination on the basis of disability. It covers a range of areas, including education, employment and access to premises.[13] Further state and territory legislation exists with similar objectives. 

The DDA is the overarching legislation for the Disability Standards for Education 2005. The Standards aim to ensure students with disability are able to access and participate in education on an equal basis to students without disability.[14] The DDA makes it unlawful to contravene the Standards, and compliance with the Standards is taken to be compliance with the DDA. 

Policy context

The National Disability Strategy 2010-2020 (the Strategy) is a national policy framework that seeks to ensure that the rights contained within the CRPD are reflected in all policies and programs affecting people with disability.[15] It sets a 10 year reform plan for 2010-2020 for all Australian governments to address the barriers faced by Australians with disability. The Strategy aims to ensure that mainstream services and programs including healthcare, housing, transport and education are accessible and address the needs of people with disability. 

‘Learning and skills’ is one outcome area of the Strategy that focuses on improving educational programs and outcomes for people with disability. The four policy directions identified in this section of the Strategy are: 

Strengthen the capability of all education providers to deliver inclusive high quality educational programs for people with all abilities from early childhood through adulthood;

Focus on reducing the disparity in educational outcomes for people with a disability and others;

Ensure that government reforms and initiatives for early childhood, education, training and skill development are responsive to the needs of people with disability; and

Improve pathways for students with disability from school to further education, employment and lifelong learning. [16] 

It is noted that the NSW Disability Inclusion Plan and the Department of Family and Community Services Disability Inclusion Action Plan 2015-19 contain minimal reference and specific actions relating to education. [17] Given the importance of a quality education in supporting social and economic participation and inclusion in the community, this is a significant omission. It is critical that this is addressed in all future plans, implementation documents and evaluation. Further, the General Comment on the Right to Inclusive Education is key resource that should be used to guide these frameworks. 

Recommendation 1: Education be a key focus area in future New South Wales Disability Inclusion Plans and implementation strategies and associated actions align with the United Nations General Comment on the Right to Inclusive Education. 

Funding Reform

A significant focus of education reform in recent years has been on school funding, including the development of a funding loading for students with disability. The Australian Education Act 2013 legislated a new model for the provision of Commonwealth funding to schools across Australia and provided principles and objectives to frame negotiations between the states, territories and Commonwealth regarding school funding arrangements.[18] 

Under the Act, schools are provided with a base amount of funding for each student enrolled (the Schooling Resource Standard or SRS).[19] Students who have been identified as requiring additional support also receive an additional funding loading, including students with disability.[20] 

The Australian Education Act contains only temporary provisions for the funding of schools for students with disability.[21] This was calculated at 223% of the respective SRS for students attending special schools and 186% for students with disability who attend mainstream schools.[22] There was a clear expectation that the loading for students with disability would be finalised during 2014 and implemented in 2015, however this did not occur.[23] It remains unclear when the disability loading will be finalised. 

A key factor impacting the development of the loading has been the lack of robust data about students with disability. To address this, the Council of Australian Governments Education Council agreed in May 2013 to undertake the Nationally Consistent Collection of Data on School Students with Disability (NCCD) to inform the development of the disability loading. The NCCD commenced in October 2013 and was collected by all Australian schools for the first time in 2015. The data is now collected annually. 

In October 2014, the Education Council announced that the data collected through the NCCD to date “is not yet of sufficient quality to provide the information required to inform funding arrangements for students with a disability.”[24] 

The 2016 Federal Budget included $118 million in funding for schools to support students with disability in 2016 and 2017. The funding is being distributed to schools using information obtained through the NCCD. It is understood that this funding provides a top up for schools based on what they should be receiving under the SRS and the interim disability loading. It does not represent the final disability loading. 

In December 2016, the report containing the 2015 NCCD results was released. The report identified 18% (674 323 students) of all Australian school students as receiving an educational adjustment due to disability.[25] However, it also noted it also noted that “improving the quality of data collected through the collection is an iterative process” and results must be considered with this in mind.[26] The interim disability loading has been again extended to 2017. The timing and development of the full, permanent loading for students with disability continues to be unclear. 

Educational outcomes of students with disability 

Available national and state statistics illustrate the significant disadvantage experienced in educational attainment and outcomes of students with disability: 

The value and importance of education is deeply embedded in the Australian community and internationally. In addition, the benefits of education to children and young people in providing opportunities for future social and economic participation is widely recognised and clearly established in research evidence.[42] 

At an individual level, international studies have identified a clear link between education attainment and positive outcomes across a range of life areas including employment, poverty and health. This was demonstrated by an Organisation for Economic Cooperation and Development report, which states that people “with high educational attainment generally have better health, are more socially engaged, and have higher employment rates and higher relative earnings.”[43] 

The impact of inadequate education provision on the life outcomes for children and young people with disability is profound. CYDA is concerned that the present education system is not providing students with disability with the necessary knowledge, skills and resources to support future meaningful social, community and economic participation post school. It is also believed that the affording of a quality and inclusive education is fundamental to the advancement of human rights of people with disability and progressing equality.  

Education experiences of NSW students with disability 

CYDA undertakes an annual national survey regarding the education experiences of students with disability. The survey covers a range of issues to provide a snapshot of current experiences nationwide. In 2016 the survey had 1396 respondents, with 28 percent being from NSW. A summary of the NSW results is provided below: 

Key considerations for students with disability 

Below is a summary of key barriers and challenges experienced by students with disability within the present NSW education system, including direct experiences of students: 

Systemic Culture of Low Expectations

Ableism refers to culturally and historically embedded attitudes and practices arising from the perception that people with disability are inferior to people without disability. These attitudes are frequently encountered in the broader Australian community, as well as the education system, which has a deeply entrenched culture of low expectations in relation to students with disability. 

The value of education, which is so highly thought of and applied to children without disability, is often seen as inapplicable or irrelevant for students with disability. Assumptions are often made about limitations regarding what and how students with disability will learn and what their future life opportunities will be. Underlying assumptions frequently position students with disability as ‘incapable’ or a ‘burden.’ Further, poor educational attainment is often attributed to the impact of disability without identification or consideration of systemic barriers. 

The importance of school culture to developing a quality, inclusive education system is repeatedly referenced in the General Comment on the Right to Inclusive Education. In particular, it highlights the need to build “educational environments in which the approach to learning, the culture of the educational institution and the curriculum itself reflect the value of diversity.”[44] Further, it states an inclusive education system must by definition afford all students the status of a learner and ensure “high expectations are established for all learners, including learners with disabilities.”[45] 

This issue was also raised in the Audit Office of NSW 2016 report into Supporting Students with Disability in NSW Public Schools, which stated that “teachers’ attitudes towards disability are critical in determining how well schools support their students.”[46] The audit found that school culture represents a key barrier to the provision of quality education support for NSW students with disability.[47] 

Inadequate Funding

Young people and families have raised a range of concerns consistently with CYDA regarding funding for students with disability in NSW. Key issues include barriers in accessing funding, insufficient amounts of funding available, funding being withdrawn, limited communication regarding funding applications and decisions and a lack of accountability around the outcomes funding is being used to support. 

A significant concern is that it is commonly assumed by schools and families that there is no requirement for the provision of adjustments and modifications by schools unless the child concerned qualifies for Integration Funding Support. Despite a range of initiatives designed to increase awareness of obligations included in the Disability Standards for Education, such as through the Every Student, Every School initiative,[48] CYDA continues to hear that this incorrect assumption is made. 

 It is also critical that adequate funding is available to implement systemic reforms to ensure the education system can meet the needs of students with disability. This is discussed in further detail under term of reference E. 

There are undoubtedly other critical areas of education reform required but it cannot be denied that adequate funding is vital to the success of any reform program implemented for students with disability. This is reflected in the inclusive education General Comment, which notes that appropriate financial and human resources must be invested to achieve a genuinely inclusive education system.[49] 

School Choice

School choice for students with disability is highly limited. Students with disability are frequently denied enrolment in their local school. Schools often state they ‘do not have the capacity to support students with disability.’ In other cases, families are made to feel so unwelcome or that their child would be such an inordinate burden that they are deterred from pursuing enrolment. 

It is also reported to CYDA that students have such a poor experience at a particular school that families elect to change schools. In these cases, there is little choice, despite students not being formally denied enrolment. 

CYDA is also increasingly being informed of students being home schooled or enrolling in distance education due to the sustained failure of the education system to meet their needs. This was recognised in the 2014 NSW inquiry into Home Schooling in New South Wales.[50] Again, this trend demonstrates that the school system is failing to meet the needs of students with disability. 

Denial of Full Time School Attendance

Students with disability frequently experience discrimination in relation to school attendance. Schools often stipulate attendance cannot be full time and state this is due to lack of resources or capacity of the school. 

Workforce Capacity

Workforce capacity is of critical importance in ensuring access to a quality education for all students. Educational staff, particularly teachers and leadership positions within schools such as principals and year level coordinators, are key gatekeepers in terms of access to education. However, a lack of expertise regarding inclusive education and meeting the needs of students with disability among education staff is frequently reported to CYDA. 

It is reported to CYDA that a lack of understanding about inclusive education among school staff, including valuing difference as a positive, is common. This informs negative attitudes that position disability as inability. 

CYDA has also noted that ‘inclusive education’ is frequently misunderstood or misappropriated within the education system. Too often a student’s physical presence in an education setting is mistakenly perceived to indicate the student’s participation and inclusion. In other cases, the term ‘inclusion’ is manipulated to suit the existing practice of education providers.[51] An example is segregated education settings being referred to as ‘inclusive.’ 

 Further, CYDA is frequently informed of education staff lacking the required expertise to meet the specific educational needs of individual students. This represents a key barrier to students with disability accessing education. 

Another consequence of the lack of expertise within schools is the misidentification of behaviour support needs, with students frequently being viewed and treated as ‘naughty.’ Often, a disciplinary response to a student’s behaviour support needs leads to use of punishment, including suspension and expulsion, rather than providing appropriate support. 

The United Nations General Comment on the Right to Inclusive Education states that a key component of an inclusive education system is ‘supported teachers and staff’ who “receive the education and training they need to give them the core values and competencies to accommodate inclusive learning environments.”[52] 

Exclusion

Students with disability frequently experience exclusion in schools. This includes complete exclusion from an educational setting, such as denied enrolment, as well as exclusion from particular aspects of the curriculum or school activities such as camps or sports days. There can also be a refusal of the school to make accommodations to ensure the student can participate, exclusion from classwork, activities and extracurricular activities or partial enrolment. This directly restricts opportunities for participation in learning and represents a barrier to accessing a quality, inclusive education. 

Accountability

The present education system provides limited accountability for students with disability in relation to academic and other learning outcomes. Many existing measures of student attainment in the school system, including the National Assessment Program – Literacy and Numeracy (NAPLAN) and the Australian Tertiary Admission Rank (ATAR) or the Australian Early Development Index (AEDI) allow exclusions, with students with disability often not being included. 

Some students have individual education programs but these contain goals that are established, implemented and evaluated by schools. There is a prevailing concern that there is no objective input into this process or that collaboration with students and families regarding the development of Individual Education Plans (IEPs) is limited. 

Family School Engagement

The vast majority of families who contact CYDA are highly engaged in their children’s education and are often or constantly experiencing conflict with their school due to the need to perpetually advocate for educational opportunities and participation for their child which are not afforded in the present inadequate system. Of further concern is the lack of communication from schools regarding education provision for students with disability. Key examples include a lack of consultation and communication around the development of IEPs or access to resources. 

Many families are required to expend significant time and energy to ensure their children can access basic education entitlements. This constant need for vigilant advocacy combined with cultural and attitudinal resistance from school staff often leads to relationships between families and schools being conflictual. This creates an additional barrier to having issues resolved and families and schools developing collaborative relationships. 

Post School Transition

Post school transition refers to the period in which young people informally or formally consider and prepare for post school life. It is reported to CYDA that post school transition is typically a variable and ad hoc process for students with disability. This time is fraught with limited information and negative attitudes from schools, employment programs and further education providers. Valuable opportunities such as work experience or part time employment are also frequently denied. A comprehensive overview of issues relating to post school transition for students with disability is available in CYDA’s issues paper, Post School Transition: The Experiences of Students with Disability (see Appendix B). 

Abuse, Restraint and Seclusion

CYDA is frequently informed of students with disability experiencing abuse in education settings. This includes blatant examples that are clearly defined as abuse, such as physical and sexual assault. However, students with disability also experience incidents that are often not considered abuse because the child involved has a disability. Restraint and seclusion that is justified as ‘behaviour management’ is an example of this. Another example is students being denied the opportunity to use the toilet while on a school excursion. 

CYDA is increasingly being informed of experiences of restraint and seclusion of students with disability. Restraint has been defined as “a range of programs, procedures, and psychosocial techniques that can impede a person’s exercise of choice and self-determination, all of which prevent people from being able to exercise human and legal rights that are ordinarily available to other members of the community.”[53] 

Seclusion is “solitary confinement of a person in a room or area (e.g. garden) from which their exit is prevented by a barrier or another person. Seclusion involves situations in which people believe they cannot or should not leave an area without permission.”[54] It is critical that restraint and seclusion is seen as abuse. This issue is discussed further under term of reference E. 

 In April 2016 CYDA requested information about cases of abuse of students with disability through freedom of information legislation from each state and territory education department. CYDA requested: 

Information regarding any complaints, investigations and outcomes regarding incidents of a child protection nature against employees where the alleged victim has been identified as a child with a disability. (CYDA sought) de-identified information regarding any complaints or incidents which occurred from 1 January 2014 to (24 March 2016). Complaints or incidents of a child protection nature would include those involving allegations of violence, abuse, neglect or exploitation (including restrictive practices). (It was requested that) the information include the date the allegation was received, employee type, initial allegation, outcome and action(s) taken as a consequence of the allegation. 

The response of the NSW Department of Education is provided for the Committee’s consideration (see Appendix C). The information provided consists of a table of 64 incidents containing the date, employee type, initial allegation and action taken regarding each incident. A range of highly concerning allegations are detailed, including cases of sexual, physical and emotional abuse of students with disability in NSW schools. Of the allegations included, it is reported that 21 were sustained but no action was taken in response. 

CYDA is highly concerned about these allegations and the apparent disproportionate response by NSW education authorities. CYDA views these allegations as reflections of an education system in crisis with inadequate safeguards, responses and reporting requirements regarding the safety of students with disability. 

Bullying

Bullying represents a persistent and chronic experience for many students with disability. This was clearly illustrated in CYDA’s 2016 survey of the education experiences of students with disability, which found 52% of students with disability experience bullying nationally (51% of NSW respondents).[1] This is significantly higher than the 27% of the total student population who report bullying.[2] 

Responses to the inquiry terms of reference 

1. A) Equitable Access to Resources for Students with a Disability or Special Needs in Regional and Metropolitan Areas 

CYDA frequently hears of poor education experiences of students with dis