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Education: Access and learning support for disabled and Deaf students

Your rights to state-funded education

 Education and Training Act 2020, ss 34, 37

The Education Act says that disabled students have the same rights as any students to state education. It also allows children and young people who require “special education” to stay at school until they’re 21.

In New Zealand at the moment the law on disability discrimination in the public education system is messy. There are two main laws that are relevant here:

  • Our education laws (the Education and Training Act 2020) include a statement of the right of disabled people (those with “special educational needs”) to equal access to state education but the courts have said you can’t go to them to enforce this right.
  • The Bill of Rights Act protects disabled people from discrimination by government and state officials in all areas of life, including education – this right can be enforced in the courts.

We explain those two areas of the law below, for people who want to use the courts to get better access to education.

Enforcing your rights to public education under New Zealand’s Education and Training Act: The law is messy

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.

Prospects for challenging the courts’ current approach to education law

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

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 mid-2023, 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 campaigns.ihc.org.nz (or go to ihc.org.nz, navigate to “get involved,” select “advocacy,” then scroll down to “Ākona: IHC’s Education Campaign”_.

Taking a case under the Bill of Rights Act" itemprop="name">Taking a case under the Bill of Rights Act

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 caused by the discrimination can’t be minor, or in other words, it needs to be ‘substantial’. 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.

How can I enforce my right to education without going to court?

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.

Specialist schools

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. For more information, see: “Deaf students.

For information about specialist schools, see the Ministry of Education website, here (or go to education.govt.nz, navigate to “5-19 Years – School,” select “students requiring learning support” and then “specialist Schools” from the menu on the right).

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Disability rights

Where to go for more support

Community Law

Your local Community Law Centre can provide you with free initial legal advice.

Find your local Community Law Centre online: www.communitylaw.org.nz/our-law-centres

Auckland Disability Law (ADL) provides free legal services to disabled people associated with their disability related legal issues. ADL is the only specialist disability law community law centre in Aotearoa New Zealand.

Website: www.aucklanddisabilitylaw.org.nz/
Email: info@adl.org.nz
Phone:  09 257 5140
Text only: 027 457 5140

Disabled Persons Assembly

DPA is a pan-disability organisation run by and for disabled people. DPA and its members work with the wider disability community, other disabled persons’ organisations, government agencies, service providers, international disability organisations and the public.

Website: www.dpa.org.nz
Email: info@adl.org.nz
Phone:  04 801 9100
Facebook: www.facebook.com/dpa.nz.7

Nationwide Health & Disability Advocacy Service

The Nationwide Health & Disability Advocacy Service offers free, independent, and confidential advice to support you in resolving issues with health and disability services.

Website: www.advocacy.org.nz
Email: advocacy@advocacy.org.nz
Phone:  0800 555 050

Le Va

Le Va is working with Manatū Hauora/Ministry of Health to support Pasifika people with disabilities and their families.

Website: www.leva.co.nz/our-work/disability-support
Email: admin@leva.co.nz
Phone:  09 261 4390
Instagram: www.instagram.com/Levapasifika
Facebook:  www.facebook.com/LeVaPasifika

Te Rōpū Taurima

Te Rōpū Taurima is a kaupapa Māori service that supports people of all ethnicities with intellectual impairments around New Zealand.

Website: www.terooputaurima.org.nz
Email: info@terooputaurima.org.nz

People First New Zealand

People First New Zealand is a self-advocacy organisation that is led and directed by people with learning disabilities.

Website: www.peoplefirst.org.nz
Email: ask@peoplefirst.org.nz
Phone:  0800 20 60 70

Deaf Aotearoa

Deaf Aotearoa is a national organisation representing the voice of Deaf people, and the national service provider for Deaf people in New Zealand.

Website: www.deaf.org.nz
Email: hello@deaf.org.nz
Phone:  0800 33 23 22
Freetext:  8223
Instagram: www.instagram.com/DeafAotearoa
Facebook: www.facebook.com/deafaotearoanz

Blind Low Vision NZ (previously called Blind Foundation)

Blind Low Vision NZ is New Zealand’s main provider of support to New Zealanders who are blind or have low vision.

Website: www.blindlowvision.org.nz
Email: generalenquiries@blindlowvision.org.nz
Phone:  0800 24 33 33
Instagram: www.instagram.com/BlindLowVisionNZ
Facebook:  www.facebook.com/BlindLowVisionNZ

Sign Language video about the courts and justice



Achieve is a national network established to ensure equal opportunity and access to post-secondary education and training for people with impairments.

Website: www.achieve.org.nz
Email: info@achieve.org.nz
Phone:  03 479 8235

Inclusive Education

Inclusive Education provides New Zealand educators with practical strategies, suggestions and resources to support the diverse needs of all learners.

Website: www.inclusive.tki.org.nz
Email: inclusive@tki.org.nz

Government Agencies

Whaikaha/Ministry for Disabled

Whaikaha is the Ministry for Disabled People. On the website, it contains information about how to access support and funding and has a directory of advisory services.

Website: www.whaikaha.govt.nz
Email: contact@whaikaha.govt.nz
Phone:  0800 566 601
Text: 4206
Communication can also be made through NZ Relay Calls

Health and Disability Commissioner

The Health and Disability Commissioner website sets out your rights under the Code of Health and Disability Services Consumers’ Rights and how you can make a complaint to the Commissioner.

Website: www.hdc.org.nz
Email: hdc@hdc.org.nz
Phone:  0800 11 22 33

To make a complaint online: www.hdc.org.nz/making-a-complaint/make-a-complaint-to-hdc

Office for Disabled

The Office for Disabled is administered by a small team from Whaikaha, and works closely with government agencies and the disability sector to make the best decisions for disabled people.

Website: www.odi.govt.nz
Email: office_for_disability_issues@whaikaha.govt.nz
Phone:  0800 566 601

Ministry of Health Services and Support

Website: www.health.govt.nz/your-health/services-and-support

Te Kāhui Tika Tangata/Human Rights Commission

The Human Rights Commission website provides information about human rights in Aotearoa and outlines how you can make a complaint to the Commission about individual or systemic disability discrimination.

Website: www.tikatangata.org.nz/ or www.hrc.co.nz
Email: infoline@hrc.co.nz
Phone:  0800 496 877 (0800 4 YOUR RIGHTS)

To make a complaint online, download a complaint form or find out more about the complaints process: www.tikatangata.org.nz/resources-and-support/make-a-complaint

Privacy Commissioner

The Privacy Commissioner website provides information about your rights and responsibilities under the Privacy Act 2020 and the Privacy Principles. It also outlines the role of the Privacy Commissioner and how to make a privacy complaint.

Website: www.privacy.org.nz
Email: enquiries@privacy.org.nz
Phone:  0800 803 909

To make a complaint: www.privacy.org.nz/your-rights/making-a-complaint

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