Disability discrimination payout to seven-year-old with autism after tirade from principal

A seven-year-old autistic student has won a significant payout over comments from her principal. See what lawyers say makes a successful disability discrimination claim.

A seven-year-old student with ADHD and autism has received $15,000 after she heard a principal describing her in an aggressive outburst as lacking empathy and being unable to behave.

The NSW Civil and Administrative Tribunal ruled last month that the child had been discriminated against on the grounds of disability due to the comments made by a state primary school principal in October 2021.

During a heated discussion, the principal also said there were “plenty of autistic kids in the school and they know how to behave and (name removed) did not”. The comments led to the child enrolling in distance education the following year, the tribunal found.

The case comes amid renewed discussion about the merits of integrated versus separated schooling for children with disabilities, with the Federal Disability Commissioner urging the Queensland government not to push ahead with a plan to open six new special schools.

One in four children in Australian schools is now deemed to need some adjustments for their disability, with the majority educated in mainstream schools.

The NSW tribunal ruled there was “no suggestion that the student exhibited any inappropriate behaviour at school” on the day of the October incident.

The student did refuse to comply with a teacher’s order to put down an iPad but the tribunal did not find she was having a “meltdown”.

Students with disabilities can be segregated and punished at school.

NCAT senior member Larissa Andelman and general member Fiona Given ruled the principal gave the student “less favourable treatment on the ground of disability”.

“We find that (the principal) would not have made these comments to a parent whose child refused to give back an iPad to a teacher when it was sought,” they ruled.

The child’s mother, who sought $90,000 in compensation, failed to convince the tribunal of other claims, such as that the school removed other learning adjustments.

The student, who started at the school in year 1 in mid-2020, was subsequently diagnosed with autism and ADHD. She was described as having “great difficulty in all social interactions” and had “significant issues self-regulating emotions” and could be “aggressive” if over-stimulated.

The tribunal members said the principal’s comments were the reason why the student refused to return to school following this day, only went back on a couple of other days and enrolled in distance education the following year.

Some students with disabilities are treated as naughty by some teachers. Source: iStock

The student’s mother said the child came home from school after the incident in October 2021 and said she “quit school” and refused to speak for two weeks.

She was paid the money on behalf of her child.

Disability advocate Julie Philips said discrimination claims against schools were increasing. She said claims were more likely to succeed where there was a “failure to provide support such as interpreters or equipment”.

“Another ground of discrimination is exclusion from activities or classes along with everyone else,” she said.

“Or it could be that a student is refused enrolment, or physical violence perpetrated by staff,” Ms Philips said.

She said there was “very consistent evidence” that segregation of children in schools should end because it was harmful.

Lawyer Tony Carbone has 30 to 40 cases of disability discrimination on his books. Picture: LinkedIn

An end to education separation for children with disabilities was also a finding by three of five commissioners in the 2023 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.

Melbourne Lawyer Tony Carbone said schools had an obligation under the law to accommodate students with a disability. “They should make reasonable adjustments and parents should be consulted if any changes are made.”

He said cases that ended up in court rather than tribunals “could get a six-figure sum for paid and suffering”.

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Originally published as Disability discrimination payout to seven-year-old with autism after tirade from principal