Access to school by people with disability: Scarlett Finney v Hills Grammar School
This was a landmark case that secured the right of school children with physical disability to access education.
PIAC’s client, six-year-old Scarlett Finney, was rejected for enrolment at Hills Grammar School in 1997 because of her disability: she has spina bifida. Her family made a complaint of unlawful discrimination on her behalf and PIAC acted for the family in a lengthy hearing before the then Human Rights and Equal Opportunity Commission (HREOC) – now called the Australian Human Rights Commission (AHRC).
On 21 July 1999, Commissioner Graeme Innes handed down his decision, finding that the Hills Grammar School had unlawfully discriminated against Scarlett on the basis of her disability. The School appealed to the Federal Court but the Commissioner’s decision was upheld by Justice Tamberlin. The AHRC subsequently ordered Hills Grammar to pay $42,628 in damages, being $37,628 for loss of educational opportunity (valued at the fees she would have paid), and $5000 for hurt and humiliation.
Scarlett’s battle with the Hills Grammar School was the first real test of the federal Disability Discrimination Act in relation to school education. It established clear standards for all schools in assessing applications on behalf of children with disability, including the requirement to engage conscientiously with parents and professionals in assessing the child’s needs.
The Commission found that the School had failed in its obligations. In particular, the School had not undertaken a proper assessment of Scarlett’s needs, but instead relied on stereotypical assumptions and general information about spina bifida, which can affect children differently.
Perhaps even more importantly the case generated a huge amount of public attention, debate and support for Scarlett. Her public appearances greatly enhanced community understanding of the barriers faced by people with disability and galvanised support for integration of people with disability in all spheres of life.
Counsel representing Ms Finney were Nicholas Poynder and Stephen Gageler (now the Hon Justice Gageler of the High Court).