Only last month I spoke at the Australia and New Zealand Education Law Conference and was able to report there had never been a successfully prosecuted case in Australia of “failure to educate” – ie compensation for breach of contract or negligence by school in failing to educate a student.

It had been tried and had failed historically in a 2012 case in which an ex-student of an independent school sought to recover fees on the basis that she had not obtained a specific level of academic achievement.

Schools have in fact had success in court in enforcing payment terms, including the common one term’s fees for late notice of withdrawal of a student.

A recent matter in Victorian Courts has seen a mother of a 17-year-old boy named Jake allege that a Victorian government school has abandoned her son’s education and has failed to adequately teach him the required curriculum.

This poses the first real case of “failure to educate” in recent years.

The case is made significantly more complex, because the student has a disability.

Certainly, the overseas cases which have been successful have often involved a student with a disability.

Current Case

The mother advocated that the failure on part of the school has left Jake unlettered and analphabetic, impacting his ability to find suitable employment or be accepted into some form of tertiary education.

Jake is set to graduate from year 12 this year, but his mother is claiming that Jake’s skills have not developed satisfactorily during the 13 and a half years of his time at the Southern Autistic School (the School).

The statement of claim filed raises allegations that both the School and the Victorian Department of Education and Training (the Department) are responsible for restricting Jake from actively participating in several school activities such as swimming and other sports. She also alleges that the School has been unsuccessful in teaching Jake a functional method of communication and this has had a detrimental effect on his already existing severe language impairment.

It was presented to the Court that Jake was made to spend most of his time at school in non-academic activities.

The allegations appear to argue that, in making reasonable adjustments as required by anti-discrimination law, the school has actually breached another obligation.

The case is listed for a three-week hearing in the Federal Court in 2020.

This case could serve as a ground-breaking precedent for all parents and carers who believe that their child has not been able to benefit from their schools education because of their disability.

What should you do?

This case should serve as a cautionary tale to all schools to ensure that its programs for students with disabilities meet minimum requirements under legislation.

A Reasonable Adjustments Assessment Rubric and Behaviour Management Policy should be implemented to assist in ensuring maximum compliance with legal obligations and reduce any exposure to potential claims, such as Jake’s.

We further recommend engaging with parents as much as possible about how the school may be able to assist students with disabilities, and discuss ways in which parents can also help from home.

Lastly – do not overlook the simple things. Every enrolment contract should clearly set out that no promises of a particular level of academic achievement are made, and that schools work with students and their families on the education journey.