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IHC has won a significant battle in its fight for the rights of students with intellectual disability.

The Human Rights Review Tribunal has decided IHC’s legal action against the Crown about the unlawful discrimination of disabled students in our school system can finally be heard.

IHC Director of Advocacy Trish Grant says the case accuses Ministry of Education systems and policies of discriminating against disabled students and trampling on their human rights.

“Disabled students deserve the support they need to access education; they deserve it morally and legally as it is a requirement under New Zealand law and Article 24 of the United Nations Convention on the Rights of Persons with Disabilities,” Trish says.

“This is a victory for disabled students.”

Now IHC has met with Michael Timmins, the Director of the Office of Human Rights Proceedings, to discuss whether his office will provide legal representation for IHC.

“Michael agrees with IHC that the human right to ‘reasonable accommodation’ that underpins IHC’s legal action requires new understanding and stronger legal and policy responses to end the discrimination experienced by disabled students,” Trish says.

IHC believes many students are being discriminated against, despite New Zealand’s new commitments to equity in education, a new learning support delivery model and obligations under  international human rights conventions .

Kataraina Werahiko, mum of two children who need learning support, says the human rights of disabled children are breached in schools every day.

“My children have been declined support, we have been turned away from early childhood centres and we have had to move schools.  We have experienced a nasty parent- blaming and child-blaming culture from the Ministry of Education and schools,” Kataraina says.

“We have had a specialist call our child ‘manipulating’, we’ve had teachers completely disregard our child’s medical condition and medical advice, we’ve had teachers unwilling to listen to suggestions that work - resulting in traumatic meltdowns.

“We’ve had our child come home from school screaming in pain from the sensory overload and the teachers simply didn’t care.  We’ve had a teacher say to my daughter in front of her peers that ‘she’s had enough of her’.

“We don’t send our children to be treated like this.  They are not challenging, violent and harmful – it’s the education system towards our children [that is].”

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.

But in 2015 the Attorney General applied to strike out the IHC claim – bringing the case to a grinding halt.

At least, until now. The Human Rights Tribunal has conclusively dismissed the Attorney General’s application and has dismissed the Crown’s strike out arguments. The substantive matter can now proceed.

“It’s taken a while but we welcome and applaud the decision,” Trish says.

“Unfortunately, a whole generation of disabled children have missed out waiting for the government to address this complaint and end this discrimination.

“We now look forward to taking a revitalised argument to the Tribunal, continuing our fight for the recognition of the human rights that have been denied to these students.”

The Tribunal has acknowledged and expressed its regret for the lengthy delay in delivering its finding.

Background to the 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 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.
• 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.