Thirteen-year IHC legal battle for disabled children's educational rights finally heads to court

The Human Rights Review Tribunal will finally hear a claim that disabled children are discriminated against in the NZ education system. Photo / File

A 13-year legal battle for disabled children's rights to a proper education in mainstream schools is finally heading to court.

The legal claim, lodged by IHC against the Government in 2008, will now go to a full hearing in the Human Rights Review Tribunal.

Six years after a preliminary hearing on the claim, the tribunal has dismissed a Government bid to strike out the claim on what the tribunal calls "a rigidly formalistic interpretation" of the Human Rights Act's disputes resolution process.

Instead, it will now hear IHC's claim that at least 15 per cent of New Zealand's 826,000 school students - 124,000 children - have disabilities requiring "reasonable accommodations" to ensure their right to an education.

Porirua parents Kataraina Werahiko and Aaron Te Runa say they have had to fight the system through much of the school life of their 18-year-old son, who has Down syndrome and autism, and spent three years fighting to "get things right" for their 9-year-old daughter, who has autism.

In an emotional statement to the Herald, Werahiko says the process of applying for support "focuses on how well you can describe your child as a monster".

"My children have been declined support, we have been turned away from early childhood centres and we have had to move schools," she writes.

"We have experienced a nasty parent-blaming and child-blaming culture from the Ministry of Education and schools."

Another Wellington parent, Robin, whose 9-year-old son suffers from anxiety driven by sensory overload, bullying and dyslexia, has had to give up paid work to home-school his son after a teacher grabbed and dragged him at one school and later a second school stopped Robin supporting his son in class for 10 hours a week.

"The learning programme and the lessons needed to be tailored in a completely different way," Robin said.

"We had all the experts to mentor and encourage them but nothing was changing."

IHC advocacy director Trish Grant, who has pursued the claim since it began in 2008, said the long legal delays had let down a whole generation of children who started school in 2008 and are now either in Year 13 or have left school.

"The education system has failed them," she said.

She said the Human Rights Review Tribunal has the power to make orders. IHC wants the tribunal to order the Government to act in five main areas:

• Impose a legal duty on school boards "to make all efforts to reasonably accommodate the behaviours arising out of disability".

• Collect data on "the presence, participation, progress and achievement of all students with disabilities", similar to data that is collected for ethnicities and other groups.

• Change the funding model to ensure that all students with disabilities "have the accommodation necessary to enable them to enjoy the right" to education.

• Change teacher training and registration requirements to ensure that they "know how to include students with disabilities requiring accommodations to learn".

• Create an independent tribunal to resolve disputes.

IHC advocacy director Trish Grant says there has been lots of progress since 2008 but it is still not enough. Photo / Supplied

Grant said there has been "lots of progress" since 2008. The law was changed last year to require that every school "is inclusive of, and caters for, students with differing needs".

A new register of all students who need support is being trialled in Tauranga and Kawerau, learning support co-ordinators have been funded for two-fifths of all schools, and dispute resolution panels are being set up to resolve disputes between schools and students or parents.

But Grant said the legal changes were still not enough, the new register of students in need was not backed by any extra funding for most schools, and the dispute resolution panels would be appointed by the Government and would not be truly independent.

Kawerau Pūtauaki School principal Rachel Chater said the trial of the new register had found "significantly higher" numbers of students with learning support needs in the Kawerau area than the 15 to 20 per cent assumed as the basis of schools' current special education grant.

The numbers in Kawerau were also significantly higher than in the other trial area - Tauranga's Ōtūmoetai community of learning.

Ōtūmoetai Intermediate School principal Henk Popping has hired three extra staff as well as a learning support co-ordinator to support students' learning. Photo / George Novak

Ōtūmoetai Intermediate School principal Hendrick Popping said the register had also shown up unmet need even in his school, and he had hired three extra staff as well as a learning support co-ordinator to support students' learning, including literacy.

"We are also spending a lot of money this year to upskill our teachers on how to teach literacy using Structured Literacy and addressing the needs of our dyslexic and dyspraxic students," he said.

Ministry of Education deputy secretary Alex Brunt said the learning support register would be rolled out to all schools over the next 18 months, starting with additional groups of schools next month.