Education and Training Act 2020, ss 33, 34; Case: Attorney-General v Daniels [2003] 2 NZLR 742 (CA)

In 2020, the  main law on education was replaced by the Education and Training Act 2020. Like the old Education Act 1989, it says that all students are entitled to a free, state education, no matter what behavioural or other difficulties they have. But the new Act now says: “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 people who do not.” This states a stronger right to education by adding the right to attend school, not just to enrol and receive education. The point is that all students should be able to fully participate in all school activities whenever the school is open.

But the Court of Appeal said in 2003 that  the right to enrol and receive education (as it was stated in the old Education Act) isn’t one that you can take to court to get enforced. The rights in the Act are just there to guide the government.

So the law at the moment says that you can’t go to court to enforce rights under the Education Act if, for example, you haven’t been allowed to enrol at your local school, because of your learning support needs.

UN Convention on the Rights of Persons with Disabilities, Art 24; UN Convention on the Rights of the Child, Art 23

But in the time since that 2003 case, New Zealand ratified the United Nations Disability Convention, which recognises that disabled people have the right to an education, without discrimination and with equal opportunities. Also, because New Zealand’s Supreme Court, our highest court, hasn’t looked at this issue, it could still be worth taking it through the courts for someone who has enough money and energy to do so.

The IHC organisation is currently trying to do this, on behalf of hundreds of disabled students and their whānau, over the difficulties disabled students have with enrolling at their local school, fully participating in school life and accessing the curriculum. The IHC complaint has been in process since 2008.As of 2021, it is  waiting to be heard by the Human Rights Review Tribunal. The result could make a big difference to every disabled person’s experience of education. You can follow the progress at www.ihc.org.nz/ihcs-education-complaint

New Zealand Bill of Rights Act 1990, ss 5, 19; Case: MOH v Atkinson [2012] NZCA 184

As well as rights under the Education Act (see above), the New Zealand Bill of Rights Act might make a future court case about access to education more successful. The Act says that everyone has the right to be free from discrimination from government and state officials, including state schools, and including on the grounds of disability. This right is one that you can take to court to get enforced. The Bill of Rights Act says that the government can put limits on that right, but those limits have to be reasonable.

The Court of Appeal (the second highest court in New Zealand) has set down some guidelines for applying that Bill of Rights protection in a disability context. The judges said the disadvantage you’re caused by the discrimination needs to be ‘substantial’ (not trivial). They also said that in deciding whether the discrimination involved the kind of reasonable limit that’s allowed under the Bill or Rights Act, the court would need to consider the aims of the particular government policy or action, and how those aims connected to the discrimination.

Code of Health & Disability Services Consumers’ Rights; UN Convention on the Rights of Persons with Disabilities, Art 24; UN Convention on the Rights of the Child, Art 23

If you have a problem at school, the best place to start solving it is at school, with teachers, the principal and if necessary, the Board of Trustees. You can also speak to staff at the Learning Support section of your local Ministry of Education office.

If you’re having trouble getting the school to recognise your rights, it’s a good idea to put the issues down in writing, in a letter to the school. Make sure you mention your rights, and the particular laws or United Nations conventions that are the source of those rights, to remind people of the government’s obligations.

As well as the rights mentioned in the previous section, you can mention these:

• The UN Convention on the Rights of the Child requires the government to recognise the special needs of mentally and physically disabled children, and to ensure that disabled children have effective access to education (Article 23).
• The UN Convention on the Rights of Persons with Disabilities recognises that disabled people have the right to an education, without discrimination and with equal opportunities (Article 24).
• The Health and Disability Commissioner Act 1994 sets out health services consumer rights in a special code (the Code of Health and Disability Services Consumers’ Rights). The Act covers any organisation which provides a health service to the public, including services provided in schools, such as a school nurse or physiotherapist. These services must be provided at an appropriate standard.

Students with high learning support needs can also be enrolled in specialist schools to give them extra support. Some of these are day schools, and some are residential. These include two Deaf Education Centres. See “Deaf students”.

For information about specialist schools, see www.education.govt.nz/school/student-support/special-education/day-special-schools-for-students-with-high-needs