Student Rights

Free legal help for students, parents & caregivers

Special education

New Zealand aims to have an inclusive education system. However, some students are denied access to some or all of the curriculum because they have a disability of some kind. For example:

Many parents complain that they are being pressured to “voluntarily withdraw” their child, supposedly because another school may better fulfil the child’s needs. Parents are made to feel that their child is responsible for the fact that their classmates’ needs are not being met.

It is important to note that “people who have special educational needs (whether because of disability or otherwise) have the same rights to enrol and receive education at state schools as people who do not”.

Education Act 1989, s 8

All students, no matter what behavioural or other difficulties they have, are entitled to an education.

My child’s needs aren’t being met at school – what can I do?

If you are concerned about your child’s learning, talk to your child’s teacher or the principal. It is important that your child’s needs are assessed, so support can be provided and the most suitable programme can be developed.

An Individual Education Programme (IEP) is a programme for students with special education needs, which can be developed by you, your child, your child’s teacher and specialists as appropriate. If you have an IEP, it should be reviewed at least twice a year, in a meeting with all those that developed it.

Schools are obliged to ensure the needs of all students are met, and a range of support is available to them. All schools receive a Special Education Grant (SEG) to help students with moderate behavioural and learning needs. Schools can also call on specially trained teachers, school-based resource teachers of learning and behaviour (RTLBs), who support and work within schools to assist staff and parents to meet the needs of students with moderate learning and/or behavioural difficulties. If your child has high social, behavioural or educational needs, you should talk to someone from Special Education at the Ministry of Education.

For more detailed information on the help available, see the Ministry of Education’s resource, Meeting Special Education Needs at School, online at www.minedu.govt.nz

If problems arise, you should consider taking your issue to the principal and then the board of trustees.

Who qualifies for dedicated funding?

Students with special needs – who may have a variety of physical, sensory, learning or behavioural difficulties – are eligible for services and support through the Ministry of Education’s schemes. Some of these services are:

Ongoing Resourcing Scheme (ORS)

This is available for a very small group of children (about one per cent of the school population) with severe difficulties and high or very high education needs. The funding can be used for a wide range of specialist services and support, including:

Applications are usually made by school staff with the help of parents, and can be made at any time. Applications are assessed by verifiers (specialists from the Ministry of Education), who usually make their decision within three weeks.

Education Act 1989, s 10

If an application for ORS funding is declined, you can appeal the decision. First, you can request that a different team of verifiers reviews the decision. Requests for review have to be made in writing within 6 months of the date the application was made. If your application has been reviewed and you’re still unhappy, you can appeal to the Secretary of Education. Appeals are conducted by an arbitrator, who is like an independent referee. The Secretary of Education must comply with the arbitrator’s decision.

School High Health Needs Fund

This fund provides a teacher aide for students with significant health issues lasting more than 6 weeks. For example:

The fund doesn’t cover students who have high health needs resulting from an accident, as these are covered by the Accident Compensation Corporation (ACC).

Intensive Wraparound Service (IWS)

The Intensive Wraparound Service is for students from years 3 to 10 with severe behavioural needs. It’s available for students who are struggling to stay at school due to their highly challenging behaviour, and who need support at school, at home, and in the community.

Referrals usually must be made by a Resource Teacher Learning and Behaviour (RTLB) or someone from the Ministry of Education’s Special Education team. If the student already has ORS funding (see above), their school can also make a referral.

If a referral is successful, a psychologist will work with the student, their family and whānau, the school and other agencies to develop a plan. Support is available for up to 3 years.

Interim Response Fund (IRF)

This funding is available for urgent situations that require a short term response while a more long term plan is being implemented. It’s usually used when a school has exhausted all its resources and is unable to manage – for example, where a student’s behaviour is likely to cause harm to others if it is not immediately addressed.

Schools request the funding from their local Ministry of Education office. Applications are made over the phone, and are processed quickly once approved.

Other specialists available through Special Education Offices include:

Should a parent be told their child can only attend school for shorter periods because of funding shortfalls?

No, this is not acceptable. It is a breach of section 8 of the Education Act (described in the introduction). Parents should enlist the services of staff from the Ministry of Education’s special education area to ensure that their child is appropriately provided for. Parents may also contact the Office of the Children’s Commissioner, which can help with information and advocacy.

Should parents be expected to top up teacher aide salaries?

No. Parents are not required to contribute to staff salaries. A range of funding is available. School principals and boards of trustees should follow Ministry of Education policy and guidelines.

What happens when a student is suspended for behaviour that is a symptom of their disorder?

Behavioural problems caused by recognised medical conditions wouldn’t usually be considered deliberate, and so wouldn’t amount to “continual disobedience”, because continual disobedience is when a student regularly and deliberately disobeys the school rules. There has to be deliberate non-cooperation or defiance.

Before suspending a student for being continually disobedient, the school should be able to show it has made every reasonable effort to find ways to address the student’s behaviour.

Schools cannot:

Can a student be prevented from going on school camp due to their intellectual disability?

No. The school camp is generally regarded as part of the school curriculum. It is unlawful to deny a student with disabilities the same benefits provided to other students, without reasonable justification.

Schools can access extra staff and funding for children with high or very high needs. Parents should argue that this extra funding could assist a child to go on camp.

A parent should consider these questions:

How far does a school have to go to accommodate a child with a disability?

Human Rights Act 1993, s 57

Schools can’t refuse to enrol disabled students or provide them with less favourable conditions or benefits than other students. However, schools are only obliged to make reasonable attempts to accommodate students.

Schools don’t have to provide special services or facilities when it’s very difficult to do so. For instance, for a school camp the school wouldn’t be expected to provide accessible toilet facilities for a student who uses a wheelchair. However, while the school wouldn’t be expected to modify the toilet facilities, they could employ someone to assist the child with toileting.

Schools are also not obliged to include students if this would cause an unreasonable risk to the student or others. However, all students should be included so far as it is safe to do so.

Parents or caregivers should encourage discussion with the school to facilitate their child’s education. If you feel your child is facing discrimination on the grounds of their special needs, you should discuss the matter with someone at the Human Rights Commission who will assist you to lay a complaint if necessary.

My child uses a wheelchair – does the school need to be physically accessible?

The Ministry Of Education Health And Safety Code Of Practice For State And State Integrated Schools, reg 3

Yes. The school is responsible for making sure all students, including disabled students, can get around safely. They can get help from the property and special education teams at the Ministry of Education.

It is a good idea to tell the school about your child’s needs before they start, to give the school time to make any changes.

Alternatives to mainstream schooling

Sometimes, your child might need more support than can be provided at a mainstream school. For a list of alternatives, see “Options other than mainstream schooling”.

Acts and policies about students with diverse and special needs

As well as the Education Act, there are other acts and policies that set out the right to an education for students with disabilities:

The New Zealand Bill of Rights Act 1990 states that everyone has the right to be free from discrimination, including on the grounds of disability.

The Health and Disability Commissioner Act 1994 sets out health services consumer rights in a special code (the Code of Health & Disability Services Consumers’ Rights). The act covers any organisation which provides a health service to the public, whether that service is paid for or not. Services provided in schools, such as a school nurse or physiotherapist, are covered by this act and must be provided at an appropriate standard.

The Human Rights Act 1993: State and integrated schools are governed by Part IA of the Human Rights Act, which prohibits discrimination on various grounds, including disability. Disability (as defined in section 21 of the Human Rights Act 1993) can mean:

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).