What is the complaint about?
In 2008, IHC lodged a complaint with the Human Rights Commission, arguing that children with a range of disabilities experience discrimination at their local school. Families had told us about the ongoing difficulties they experienced in having their child’s right to education recognised. Children with disabilities are treated differently to non-disabled children in matters to do with enrolment, access to the curriculum and participation in school life.
IHC believed that these practices contravened New Zealand’s commitments to important international human rights conventions. IHC decided to have these practices examined within a human rights context using the mechanisms available within Part 1 A of the Human Rights Act.
In April 2014 IHC’s legal counsel, Frances Joychild QC, filed an amended claim with the Human Rights Review Tribunal. The claim was further amended in August 2014 in response to an application from the Crown requiring further details of the nature and extent of the treatment of disabled students which IHC claims is discriminatory.
In early 2015, the Human Rights Review Tribunal held a preliminary hearing into the complaint after the Attorney General applied to strike out several of IHC’s claims. Two and a half years later we are still awaiting a decision from that preliminary hearing. Confidential discussions about the complaint between IHC, the Ministry of Education, the Education Review Office, and the Education Council over four days in 2016 failed to reach a settlement.
The legal case is effectively stalled until the preliminary decision is released by the Human Rights Review Tribunal, then IHC will be in a queue for a hearing that may be years away. The delay is because the Tribunal is very thinly resourced and has experienced a huge rise in cases in recent years. Despite IHC raising this backlog with the Minister of Justice, no action has been taken to address it. The impact of the delay is huge, as IHC will have to go through another round of obtaining up-to-date evidence for its hearing.
Despite years of special education announcements and changes the overall situation on the ground for children with disabilities at school has not improved. New Zealand’s widely celebrated commitment to human rights on the national and international stage must be matched with appropriate resourcing of the Human Rights Review Tribunal.
Key messages
IHC complaint under Part 1A of the Human Rights Act, 1993.
- IHC’s complaint responds to the high numbers of complaints and concerns received about the difficulties disabled children and youth have with enrolling at their local school, participating in school life and accessing the curriculum.
- These difficulties are clear evidence of discrimination. IHC believes the problems are structural and discrimination occurs as a result of government policy and systemic failure.
- Disability and children’s organisations agree that disabled children and young people are entitled to the same educational opportunity as all New Zealand children and failure to do so must be addressed through a human rights mechanism not through tweaking of special education policy.
- A fair go for disabled children at school means that they are welcomed, their learning needs are met and that they have the supports to enable them to do so. It also means that they are able to participate in all aspects of school life.
- Education policy needs to reflect the rights to education without discrimination and on the basis of equal opportunity enshrined in both the Convention on the Rights of the Child and the Convention on the Rights of Disabled Persons and New Zealand’s legislation.
- The recently released Convention Coalition Monitoring report (Article 33 of the United Nations Convention on the rights of Disabled Persons) confirms that young people with disabilities say they have experienced discrimination through having limits placed on their right to access education in the same way as their non disabled peers.
- It is important to note that the complaint is not about debating which types of educational settings provide the best learning environments for students with disabilities. IHC is focusing on government policy that allows discrimination to occur when parents enrol their son or daughter at their local mainstream school.
- IHC supports recent government initiatives to build inclusive practice in schools but we are calling for the systemic change necessary to end the problems experienced by disabled children, families and schools. The problems have gone on for too long and need to be fixed now.
Information you might find helpful
Things you might be interested in
IHC Library
Our Library is free to use for anyone living in NZ. We have information on all aspects of intellectual disability, autism and other developmental disabilities.
Advocacy
IHC provides advocacy support wherever there is a need to stand up for the rights of one or all people with intellectual disabilities in New Zealand.
Volunteering
Play a big part in the life of a person with an intellectual disability and the work IHC does by joining our One-to-One Friendship or Skills-based Volunteer Programmes.