<h1″>Disability rights
Education: Access and Learning Support for Disabled and Deaf Students
Your rights to state-funded education
Education and Training Act 2020, ss 34, 37 New Zealand Bill of Rights Act 1990, s 19
The Education Act says that disabled students (including those who have learning support needs) have the same rights as any students to state education. It also allows children and young people who require learning support (sometimes called “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:
- Under the Education and Training Act 2020, disabled people (including people with “special educational needs”) have a right to equal access to state education. But in a case from 2003 that considered similar rights under the previous law in force, the courts said you can’t go to them to enforce this right.
- The Bill of Rights Act 1990 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 complicated
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. 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”. So, this is 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 general right to enrol and receive education (as stated in the old Education Act) isn’t one that you can directly take to court to get enforced. This right is there to guide the government.
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 UN Disability Convention, which recognises that disabled people have the right to an education without discrimination and with equal opportunities.
It’s possible that the courts might take a different approach to deciding what education rights are enforceable today, given the UN Disability Convention and other developments in human rights law. For example, the United Nations Convention on the Rights of the Child is another international convention that New Zealand is a part of, and it could also be relevant here. Article 23 of that Convention talks about ensuring that disabled children have effective access to and receive education” to help them integrate into society and develop as individuals.
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 Ākona: IHC’s Education Campaign.
Taking a case under the Bill of Rights Act 1990
New Zealand Bill of Rights Act 1990, ss 5, 19 Human Rights Act 1993, s 21 Case: Ministry of Health 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. For more information, see: “Government bodies, public services, and schools”.
The Court of Appeal (the second highest court in New Zealand) has set down some guidelines for applying that Bill of Rights protection in the context of discrimination against family carers of disabled people The judges said the disadvantage caused by the discrimination need to be “material”. In other words, it can’t be minor. That discrimination will be unlawful if it is not reasonable (justified “in a free and democratic society”). They also said that in deciding whether the discrimination involved the kind of reasonable limit that’s allowed under the Bill of Rights Act, a court would need to consider the aims of the particular government policy or action, and how the discrimination was connected to those aims.
How can I enforce my right to education without going to court?
New Zealand Bill of Rights Act 1990, ss 5, 19 Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996 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 and the principal, as well as the Board of Trustees if necessary. You can also make a complaint in writing to staff at the Learning Support section of your local Ministry of Education office. They will contact you within 5 working days to talk about how they will manage your complaint, and aim to sort out most complaints within 15 working days. For more information, go to Make a complaint about Learning Support Services on the Ministry of Education’s website.
If you’re having trouble getting the school to recognise your rights, it’s a good idea to put the issues down in writing by sending 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 the school of the government’s obligations.
You can mention these:
- The New Zealand Bill of Rights Act 1990 says that everyone has the right to be free from discrimination on a prohibited ground, which includes disability (s 19, and Human Rights Act 1993, s 21).
- 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 consumers’ rights in a special code (the Code of Health and Disability Services Consumers’ Rights). The duties in the Code apply to any person (or organisation) who provides a health or disability service to the public, including services provided in schools like a school nurse or physiotherapist. People providing health and disability services have to provide those services 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: “Specialist schools”.
