Children with Special Needs and the Right to Education

by A/Prof Tamara Walsh and Kathryn Thomas

Executive summary

All Australian children are required by law to attend school, including children with disabilities and other special needs. For children with special needs, inadequate special education services can have significant impacts on their lifelong learning capacity. The Education Acts in the States and Territories outline the kinds of services that can be made available to children with special needs in schools, but they stop short of providing a right to accessible or appropriate education for children.

Absent this right, this report presents findings on the (lack of) redress available to children with special needs when they are not provided with the educational services they require. It examines discrimination claims against primary schools on behalf of children with disabilities in Australia between 2003-2014. It presents the results of a survey of primary school educators in Brisbane, which explored the effectiveness of adjustments in promoting inclusion of students with disabilities and the impact this has on conciliation. Lastly, it examines the potential for negligence claims to hold education providers accountable for the harm that can, and does, result when the educational requirements of children with special needs are not adequately met.

The results of these findings demonstrate a number of things:

  1. Relevant legislation and policy goals need to be more closely aligned. There may be inconsistencies between discrimination legislation, which calls for reasonable adjustments to be made, and policy documents, which emphasise the importance of inclusion.

  2. Children might be able to frame their claim as a discrimination matter in some cases, but this is often something of a legal fiction since most children with special needs are met with a surprising amount of goodwill in schools. The problem is generally one of resources, and the way resources are allocated amongst schools and children in need of support, rather than discriminatory attitudes.

  3. The vast majority of special needs discrimination cases that proceed to tribunals or courts go against the complainant.

  4. In contrast, conciliation can produce positive results for students with disabilities. Schools and educators are willing to include students with disabilities in their programs, and they are willing to take steps towards successful inclusion. However, educators generally agree that they require more resources, particularly staff and training, to support them in their inclusion endeavours.

  5. A failure to provide students whose needs have been assessed, identified and documented with the special education services they require may breach an education provider’s duty of care to the student.

A child’s access to education is considered to be a universal right, extending even to those with severe disabilities. As it stands, the current protections and courses of redress in Australia are ineffective in ensuring the adequate provision of education to children with special needs. Reforms are necessary in a number of areas. However, it is significant that prejudicial attitudes are rare in these cases. Rather, it is ineffective policies and cost pressures that stand in the way of adequate service provision.


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