The Education and Training Act 2020 says children with special educational needs have the same rights as everyone else to enrol, attend and receive education at a state school. Stock photo / 123RF
The Education and Training Act 2020 says children with special educational needs have the same rights as everyone else to enrol, attend and receive education at a state school. Stock photo / 123RF
Some kids with disabilities attend school for just an hour a day. Some have to do colouring-in when everyone else is learning.
Others can only attend if their parents quit work to sit with them in the classroom, or pay for a teacher aide to help with their learning.
That's despite legislation stating all children with disabilities are entitled to a free education at state school in the same manner as their non-disabled peers.
Now a long-running legal fight - which claims the Government has discriminated against disabled children by denying them their educational rights - has reached court.
A statement of claim lodged with the Human Rights Review Tribunal by IHC today alleges the Government has discriminated against disabled children and breached their human rights by failing to provide them with the same state education as their peers.
And that's left them less educated, socially excluded, emotionally distressed and poorer, IHC says.
In 2008 IHC first lodged a complaint with the Human Rights Commission, claiming while children with disabilities had the lawful right to attend their local state school, they were being denied that right because schools didn't have the resources to support them.
The advocacy group points the finger at successive governments - specifically the Ministry of Education and Ministers of Education - for policy and funding decisions which have forced schools to make choices that hurt disabled children.
IHC won the right to lodge its claim with the Human Rights Review Tribunal in a legal decision in February.
Its statement of claim, seen by the Herald, alleges the Government has discriminated against disabled students with learning support needs.
Those students are "materially disadvantaged" as a result, IHC says, including by:
• Failing to receive an education or getting a lower quality education than their peers;
• Having lower achievement levels in education and in their lives;
• Being socially excluded;
• Feeling emotional distress;
• Having strained family relationships; and/or
• Reducing their family's financial security due to their limited school attendance.
IHC wants the tribunal to declare the Ministry of Education has breached disabled students' rights and to order it to stop doing so. It does not ask specifically for more funding for the education system, but for resources to be redistributed fairly to remove inequities.
In a statement, IHC director of advocacy Trish Grant said the Government had failed to engage with the unfairness disabled students experienced.
Trish Grant, IHC NZ director of advocacy, says the Government has failed to engage with the unfairness disabled students experience. Photo / Michael Cunningham
"We started this in 2008," Grant said. "That's the timeframe of an entire school education in New Zealand – a child starting school in 2008 is now in their last year of high school.
"Children with disabilities are far more likely to be suspended, stood down or excluded from school because the schools aren't well enough resourced to support diverse learners.
"We hear of children told they can only attend one hour a day, can't be part of school activities or are left colouring-in while other children are supported to learn."
Parents often had to give up work to accompany their child at school so that they could attend, Grant said.
IHC believes more than 100,000 children have disabilities requiring "reasonable accommodations" to ensure their right to an education. But a 2019 survey found almost one in three children with disabilities was being denied enrolment at their local school.
The Education and Training Act 2020 has made those students' rights more explicit, saying "students who have special educational needs (whether because of disability or otherwise) have the same rights to enrol, attend, and receive education at State schools as students who do not".
Michael Timmins, the director of the Office of Human Rights Proceedings, is leading IHC's legal action. IHC is suing the Attorney-General on behalf of the Government, particularly the Ministry of Education and the Minister of Education.
The Government has until August to respond, with the next steps to be decided in September.
The Herald has sought comment from Education Minister Chris Hipkins.
In an earlier statement, MOE spokesperson Katrina Casey said the ministry was keen to work with IHC.
