Chapter 2 - Defining disability and levels of need
2.1
Much hangs on the definition of a disability, or
even whether a disability is defined at all. Depending on the scope of the
definition, rights are protected; funds are allocated; research commissioned,
and policy evaluated. The definition of disability becomes particularly
important when it provides a mechanism to compete for funds. Traditionally, the
term disability has covered a range of conditions: vision and hearing
impairments, intellectual disabilities, physical disabilities, socio-emotional
disorders and multiple disabilities. Students with these disabilities comprise
some 3 to 5 per cent of the school population. More recently, the diagnosis and
subsequent labelling of moderate or educational disabilities, such as learning
disabilities, Attention Deficit Hyperactivity Disorder (ADHD) and Aspergers
Syndrome has increased the number of students competing for special education
resources. While the number of students diagnosed with these conditions is unknown,
evidence suggests that they make up a significant proportion of total student
numbers. For example a recent study published in the Medical Journal of
Australia estimated that among 6–17 year olds, the prevalence of ADHD was
11.2 per cent.[1]
The committee agrees that this represents a significant policy challenge for
governments.
2.2
This chapter focuses on the school sector. It
will explore the criteria used to define disability, and to access funded
support. It will consider the various funding allocation models used by state
governments, and the ways in which students’ disability related needs are
assessed.
Commonwealth definitions of
disability
2.3
The definition of disability under the Disability
Discrimination Act 1992 is very broad. This ensures that people with a wide
range of disabilities are protected from discriminatory practices in the areas
of employment, accommodation, the disposal of land, the activities of clubs,
sport, the administration of Commonwealth laws and programs and in requests for
certain information. Section 4 of the Act defines disability as follows:
disability, in relation to a person, means:
- total or partial loss of the person’s
bodily or mental functions; or
- total or partial loss of a part of the
body; or
- the presence in the body of organisms
causing disease or illness; or
- the
presence in the body of organisms capable of causing disease or illness; or
- the malfunction,
malformation or disfigurement of a part of the person’s body; or
- a disorder or malfunction
that results in the person learning differently from a person without the
disorder or malfunction; or
- a disorder, illness or
disease that affects a person’s thought processes, perception of reality,
emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
- presently exists; or
- previously existed but no longer
exists; or
- may exist in the future; or
is imputed to a person.[2]
2.4
Under this definition students with HIV/AIDS,
social and emotional difficulties, brain injury, medical conditions or
psychiatric illness or who learn differently are protected from discriminatory
practices.[3]
The definition is wide enough to include a person whose disability is not yet
apparent but which may occur at sometime in the future.
2.5
Historically, and in the education context,
definitions of disability have only included sensory, physical and intellectual
disabilities. Students with these ‘traditional’ disabilities are targeted by
the Commonwealth for specific funding under the Commonwealth’s Strategic
Assistance for Increasing Student Outcomes (SAISO) program. In 2001, 3.4 per
cent of the total number of school age students were eligible for per capita
funding under this program.[4]
The Department of Education Science and Training estimates that, in 2002, $11.3
million will be provided to government education authorities and $11.8 million
to non-government authorities as per capita funding under this program.[5]
2.6
Access to Commonwealth per capita funding is
dependent upon funding eligibility under a state education department
disability program. This does not necessarily guarantee per capita Commonwealth
funding because Commonwealth funding is restricted to intellectual, sensory,
physical, social, and emotional impairments. For instance, the Commonwealth
definition excludes students with specific learning difficulties.[6]
2.7
To be eligible for this funding a student must
satisfy the criteria defined in States Grant (Primary and Secondary
Education Assistance) Act 2000, where:
child with disabilities means a child for whom a
disability assessment has been made and to whom one of the following paragraphs
applies:
- if the child is of school age:
- his or her attendance at a
school, a government centre or a non-government centre is not appropriate
because of his or her disabilities; or
- although attending a school, a
government centre or a non-government centre, the child is unable (because of
his or her disabilities) to receive a substantial part of the benefits
ordinarily available to children enrolled there;
- if the child has not reached school age, it is likely that,
on reaching that age:
- his or her attendance at a
school, a government centre or a non-government centre would not be appropriate
because of his or her disabilities; or
- if he or she attended a school,
a government centre or a non-government centre, the child would be unable
(because of his or her disabilities) to receive a substantial part of the
benefits ordinarily available to children enrolled there.
disability assessment, for a child or a student,
means an assessment, by a person with relevant qualifications, that the child
or student has an intellectual impairment, a sensory impairment, a physical
impairment, a social impairment, an emotional impairment or more than one of
those impairments to a degree that:
- for a child of school age or a student—satisfies the
criteria for enrolment in special education services, or special education
programs, provided by the Government of the State in which the child or student
resides; or
- for a child who is not of school age—would satisfy those
criteria if the child had reached that age. [7]
2.8
Per capita funding only represents a small
portion of the total Commonwealth funding available to support students with
disabilities and it is meant to support those students with high support needs.
The majority of funds under the SAISO program are allocated to education
authorities to improve the educational outcomes of educationally disadvantaged
students. Included in this group are students with high support needs and
students with moderate disabilities or learning difficulties. Decisions about
the use of funds, however, are left to the discretion of government and
non-government educational authorities. The committee recognises that while
there may be administrative reasons for subsuming all special needs students
into one funding category; this approach makes it hard to determine whether the
needs of any one sub group are being given appropriate attention. Nevertheless,
the committee has noted that the Commonwealth’s funding definition of
disability and the definition of disability under the Disability Discrimination
Act, allows flexible use of SAISO funds by states and territories. It sees the
real issue as the extent to which total Commonwealth funding for special needs
students had kept pace with demand.
2.9
The committee recognises that the education of
students with disabilities is a state responsibility. The evidence suggests,
however, that in supporting the education of students with disabilities, the
Commonwealth has given scant regard to the obligations imposed on education
authorities since the introduction of the Commonwealth’s anti-discrimination
legislation:
The original funding distribution was established during the mid
nineteen eighties when independent schools across Australia enrolled few
students with disabilities. The same historical formula is being used in 2002
and the Department of Education Science and Training has admitted, when
questioned, that the funding has ‘no formula but only a history’. The
allocation certainly does not take into account the cost of complying with the
DDA, the increase in numbers of students with disabilities enrolled in the
sector and the costs of providing for these students.[8]
2.10
As previously discussed, this act uses a very
broad definition of disability and this has increased the cohort of students
who are potentially eligible for additional funded support in schools. This has
had significant resource implications for schools and the broad and untested
definition of disability under the Disability Discrimination Act has been one
of the stumbling blocks to finalising education standards. This issue is
explored in detail in the next chapter.
2.11
Significant increases in the number of diagnosed
conditions such as Aspergers Syndrome, ADHD and learning disabilities has
further increased the demand for educational resources, yet there has not been
a commensurate increase in Commonwealth funding to support these students. The
committee notes that ADHD is now the most commonly diagnosed disorder amongst
Australian children.[9]
2.12
The Autism Association of New South Wales has
provided information on the increased number of students being diagnosed with
an autism spectrum disorder:
In New South Wales there has been a tremendous growth in the
realisation of how many children there are with autism. For instance, we
estimate that in New South Wales between 5,000 to 15,000 children have an
autism spectrum disorder. If that is converted nationally it ranges from
approximately 16,000 to 48,000 students across the country. That figure is
based on a range of epidemiological studies that have been done over the last
few years around the world.[10]
2.13
The committee supports the principle that all
people should have the same right to education. It agrees that the Commonwealth
should take a proactive role in realising this ideal. The introduction of
national anti-discrimination legislation in 1992 was one step. The committee
agrees, however, that it is timely that the Commonwealth take a leadership role
in finalising education standards in support of the legislation. This issue is
explored at length in the last chapter.
State and territory definitions
of disability
2.14
The definitions used by state governments to define
disability typically take a categorical approach, with a set of criteria
defining each category. These categories vary between states and territories
but all include intellectual, sensory and physical disabilities. Many states
also recognise behavioural or socio-emotional disorders and severe language and
communication impairments. Figure 1.1 summarises these categories and further
details about the criteria that define each category can be found in Appendix
5.
2.15
The committee notes that the Department of
Education in Western Australia is in the process of reviewing current
structures and support services following the introduction of School
Education Act 1999. Definitions in Western Australia have previously
included autism spectrum disorders and intellectual, physical and sensory
disabilities. However, in line with the more inclusive definition under the
Disability Discrimination Act, the School Education Act widened its
definition to include neurological, cognitive and psychiatric conditions.[11] This is consistent with the
trend to define students with disabilities more widely and includes all those
students who have special education needs.
Figure 1.1 Disability funding categories
State
|
Disability
categories
|
Department of Education (New South Wales)[12]
|
Sensory impairment, intellectual,
physical and psychological functioning and language disorders
|
Education Queensland[13]
|
Physical impairment, speech - language
impairment, hearing impairment, intellectual impairment, visual impairment
and autism spectrum disorder
|
Department of Education and Training (Victoria)[14]
|
Physical disabilities, severe language
disorder, severe emotional disorder, hearing impairment, intellectual
disability, visual impairment and autism spectrum disorder
|
Department of Education, Tasmania[15]
|
Vision impairment, deafness and hearing
impairment, autism, intellectual disability, physical disability, psychiatric
disorder, and multiple disabilities
|
Department of Education (Western Australia)[16]
|
Autism, intellectual, hearing, visual,
language and physical disabilities
|
Department of Education and Children’s Services
(South Australia)[17]
|
Physical, intellectual or sensory
impairments and /or disabilities in communication, multiple disabilities
|
Department of Employment, Education and Training (Northern
Territory) [18]
|
Intellectual, sensory, physical
social/emotional, language /communication disability, a specific learning
disability or multiple disabilities
|
Department of
Education and Community Services, Australian Capital Territory[19]
|
Sensory, physical, psychological,
intellectual, communication disorder, severe disturbed behaviour, multiple
disabilities
|
2.16
State and territory definitions are as much
about deciding who is eligible for disability program funding as they are about
defining a particular disability. The Tasmanian Department of Education had the
following to say in relation to definitions:
We accept that any definition is actually a continuum—you have
really got a continuum of special educational need. Where you draw a line to
say, ‘This is the group we will fund,’ will always, to a certain degree, depend
on funding and other factors. There will never be a definitive definition of
disability; it will depend on a number of other things.[20]
2.17
Many submissions were critical of a categorical
approach in defining disability, arguing that by their nature, the use of
categories will exclude some groups. The Australian Education Union argues:
...categories exclude certain types of disability by defining them
too narrowly, and by not keeping up to date with current knowledge and
understanding. Disabilities such as learning difficulties (which itself
includes a wide range such as mild intellectual disabilities and dyslexia);
acquired brain injury; ADD/ADHD; behavioural disorders; foetal alcohol
syndrome; and significant medical conditions are generally not included.[21]
2.18
State education authorities argued that special
education policy provides for all students with special needs. Various numeracy
and literature programs are used to support those with special needs who might
not meet criteria for specific disability funding, but nevertheless have a
learning difficulty. It was argued that all students with educational needs
receive necessary assistance without the use of labels, but in reality
increasing competition from a growing number of students identified as having
special education needs is seriously stretching finite resources.
2.19
The evidence suggested that schools are notably
failing to meet the needs of students with learning disabilities such as
dyslexia, neurofibromatosis, and scoptic sensitivity. Learning disabilities can
be defined as severe and prolonged difficulties in the acquisition and
development of expected literacy, numeracy and reasoning skills given at least
average intelligence and the absence of other casual factors. They are presumed
to arise from neurological impairments, are intrinsic to the individual and are
lifelong. They are not caused by low intellectual ability, inappropriate
learning background or emotional difficulties, although these may coexist with
learning difficulties.[22]
2.20
The Disability Discrimination Act obliges
educational authorities to make reasonable adjustments for students who have
been diagnosed with a learning disability. The Attorney-General’s Department
advised:
Not every learning difficulty will necessarily be regarded as a
‘disability’ for the purposes of the DDA. Whether a learning difficulty will
be considered a “disability” for the purposes of the DDA will depend on the
circumstances of the particular case and any medical evidence that is available
to demonstrate whether the difficulty is a disorder or malfunction. In a
recent case before the Federal Magistrates Service concerning disability
discrimination in the employment context, dyslexia was considered by the Federal
Magistrate to be a “disability” for the purposes of the DDA.[23]
[24]
2.21
The committee heard much evidence about the
mismanagement and misdiagnosis of learning disabilities. A disability teacher
from a New South Wales Technical and Further Education (TAFE) college told the
committee that there were a significant number of students enrolling in TAFE
colleges with undiagnosed learning disabilities. There were also some students,
who despite having a diagnosed learning disability had received little support
during the schooling years. Having experienced considerable frustration and
failure in secondary school, these students leave school early and enrol in
TAFE.[25]
2.22
This view was supported by the Tasmanian
Tertiary Education Disability Advisory Committee:
Hearing the traumatic stories of students with Learning
Disability’s schooling experiences and then witnessing their struggles and
eventual academic successes in the tertiary environment leads us to conclude
that we are only seeing a few “survivors” of the system. We are aware that
many others do not finish their schooling. Early intervention assessment and
support processes are urgently required.[26]
2.23
It is not surprising therefore that many
witnesses advocated that learning disabilities should be defined as a specific
disability. This would provide a means of securing scarce resources:
With regard to learning disability, in terms of awareness and
understanding, ALDA’s [Australian Learning Disability
Association] main agenda is to get learning
disability on the agenda—out from under the learning difficulties label and
definition and the level of support that is provided—and up-front as a
legitimate disability that requires similar support mechanisms, identification
and understanding as other disabilities.[27]
2.24
While the committee accepts the view that the
urgent attention is required to address the needs of students with learning
disabilities, defining the group may be problematic. The committee accepts that
the needs of students with learning disabilities require immediate and
significant attention. It agrees that the development of a nationally
determined definition of learning disability, including the assessment process,
will be the first step in addressing the needs of this group. Importantly, the
committee recognises that a national strategy is required to address the needs
of all those special needs students with less ‘traditional’ disabilities. In
this way the need to define a particular condition as an educational disability
category to enable funding access might be avoided.
Assessing needs
2.25
The Disability Discrimination Act introduces the
concept of ‘reasonable accommodation’. This requires education providers to
take reasonable steps to implement adjustments that will enable students with
disabilities to take part in education and training on the same basis as
students without disabilities. This is usually a collaborative process in which
parents and schools work together to identify barriers to learning, and ideally
decide the adjustments required to minimise these barriers. Most education
authorities have systemised this process.
2.26
Victoria uses a questionnaire to determine the
level of resources that will be provided to a school following a student’s
acceptance into the state’s disability program. The process establishes the
student’s functional capacity in the areas of mobility, fine motor skills,
receptive and expressive communication, challenging behaviour, safety, hearing,
vision, self-care, medical and cognitive skills, but the assessment is based on
the child’s level of handicap. For instance, in the area of receptive
communication, an assessment will be made about a child’s ability to understand
instructions. This will range from whether a child understands a simple
instruction such as ‘go to the computer’ to having no understanding of simple
one-word commands either by voice or gesture.[28]
While the system has been designed to provide a transparent and simple process
for the allocation of funds it attracted criticism from parents, teachers and
disability groups. As one teacher explains:
Basically, parents are asked to fill in a questionnaire and to
tick the box which most suitably describes their child’s level of
communication, level of hearing or whatever. There are many different criteria
in this program for students with disabilities. However, although the form is
designed to be simple and accessible to parents, for hearing impaired and deaf
children the simplicity of the form really fails time and time again to
adequately acknowledge the complexity of the issues faced by young,
prelingually deaf children. It has resulted in a situation in which deaf
children are not adequately funded under this method. [29]
2.27
Queensland has adopted six levels of education
need, but students whose needs are below Level 4 are not considered to need
additional support on a regular basis. Funding of students with ascertainment
levels of 4, 5 or 6 is determined by staffing formulae.[30] This model was criticised
because it did not look at the individual educational needs of the child, nor
capture how the disability impacts on lifelong learning considerations.
2.28
The Queensland Parents for People with a
Disability had the following comments to make about Queensland’s ascertainment
process:
The QPPD views ascertainment as a flawed process in that it
purports to assess the deficits of a child and largely ignores the strengths of
a child. The purpose of education is to gain skills; the whole of school
experience is geared towards honing the skills of the individual, preparing us
to take our place within our community, to draw on our own strengths to
contribute to and participate in our societies and to attain and benefit from
the full rights of citizenship. Educational processes, such as ascertainment,
which focus on deficit rather than strength do little or nothing to encourage
full participation.[31]
2.29
In focussing on a student’s deficiencies the
Queensland model encouraged an exaggeration of disability to secure better
funding. Parents argued that this promoted under education of students with
disabilities because teachers and parents had lower than reasonable
expectations about the child. Further comment on ascertainment in Queensland
will be found in Chapter 3.
2.30
In South Australia levels of support for
students with disabilities is based on the curriculum needs of the student with
direct support provided to the schools, usually in the form of cash grants and
based on those needs. However the committee was told that this model also
encouraged an exaggeration of handicap to ensure higher funding provision. The
Special Needs Education Network commented in relation to the South Australian
model:
This categorisation by diagnosis also puts children in
pre-determined “boxes”, rather than looking at exactly what the child needs to
access the school curriculum.
Criteria used for this kind of categorisation create division
between families of children with disabilities. Competition arises because
families ‘win’ funding and support through ‘proving’ that their child is more
handicapped than someone else’s. The definition should be about the needs of
the student for equity of access, not what box they fit in to.[32]
2.31
In contrast, the New South Wales system profiles
the educational needs of each student in areas where appropriate adjustments
are required. This process was developed following a review of disability
education in that state in 1996. Allocations of funding are determined on the
basis of the assessed level of need of a student. Funding is only made
available when the school or district does not have an existing capacity to
meet those needs. While this process focuses on the types of adjustments that a
school will need to make to support the student it also drew its critics. The
Australia Guidance and Counselling Association was concerned that budgetary
constraints, rather then assessed needs, played too much of a role in
determining the level of funding support given to individual students:
There is a perception that criteria in the NSW state system
change from year to year. Counsellors who are psychologists feel that a clear
diagnosis is presented but this is often queried by special education personnel
involved in funding decisions.
There is a perception that district offices encourage overly
strict definitions of disability and need so that quite disabled students are
represented as being less needy than they really are. This appears to be
related to too little available funding.
The current guidelines for determining levels of need are too
strict. For instance, a student with a mild intellectual disability in a
regular class placement may receive little or no funding support. The level of
disability and need are defined, but funding does not follow.[33]
2.32
In Tasmania, the Department of Education’s model
includes a two-tier approach to the identification and researching of students
with disabilities. Students with disabilities are supported via either
‘central’ or ‘district’ special education resources or processes. This model
clearly differentiates between students with most severe level of disability
(category A funded students), who undergo a state-wide moderation process, and
those with mild to moderate disabilities (category B funded students) who may
or may not have a specific diagnosis but are supported on the basis of their
educational need. [34]
Funds are allocated to students on the category A register on the basis of
teacher aide hours.
2.33
Western Australia is currently reviewing the
educational services it provides to students with disabilities. It is also
trialing new models for identification of student learning needs and placement
decisions.[35]
2.34
The committee recognises the value in moving
towards a nationally agreed process for funding students with disabilities with
a focus on student needs rather than student deficiencies. As a first step, the
committee recommends that the Commonwealth commission a study to determine best
practice models for allocating funds to students with disabilities. This model,
which should ensure an equitable and transparent funding process, should be
based on sound research and thorough consultation with relevant bodies.
Recommendation 2
The committee recommends that the
Commonwealth commission a study to develop a best practice funding model to
support the needs of students with disabilities in schools.
Lack of national consistency in
definitions
2.35
As previously discussed, there is significant
variation in the terminology and definitions used to define disability and
assess need. Such inconsistencies are reflected in collected data and published
statistics, and make useful comparisons difficult. A recent study into
literacy, numeracy and students with disabilities by Christa van Kraayenoord et
al made the following remarks:
Prevalence figures are very difficult to determine from one
state to another, and from one system to another, for a variety of reasons.
These reasons include: systems and sectors differ in their requirements to
provide information on different groups of students with disabilities, the use
of different definitions, the different ways a definition has been
operationalised, the different groups for which data are reported and the
different ways on which data is collected and reported.[36]
2.36
In particular, the committee found that there
was a lack of consistency in the criteria used by state education authorities
to decide disability program eligibility. Further, because the processes and
tools for allocating funds under these various programs were different across
the states and territories it is conceivable that the same child could receive
two quite different levels if support depending on the state in which they
lived.
2.37
Many submissions argued that the inconsistency
in the definitions of disability in the school sector, as well as differences
in assessment processes across states and territories, was indefensible. The
National Council of Independent Schools Association was not alone in citing
equity as one reason to develop nationally consistent disability definitions:
The absence of a nationally consistent definition of students
with disabilities means that a student might be classified differently, and as
a result receive quite different levels of support, depending on where they
live in Australia. As an example of inconsistencies in definition, Appendix A
sets out the definition of vision impairment across the different states and
territories. It shows that to meet the criteria for vision impairment the
student needs to be “legally blind” (acuity of 6/60 or less) in the Northern
Territory and Victoria, while lesser levels of vision impairment satisfy the
definition in other states and territories.[37]
2.38
The Australian Blindness Forum was also
concerned about the Commonwealth’s inability to measure performance for
students with disabilities, and in particular students with a vision
impairment:
...the ABF is concerned that the National Reports on Schooling in
Australia for 1998 and 1999, published by the Ministerial Council on Education,
Employment, Training and Youth Affairs (MCEETYA), significantly failed to
address the outcomes for students with disabilities, including those with vision
impairment. A report on numeracy acquisition[38]
released in 2000, did not make a single reference to students with vision
impairment and the barriers they face in acquiring numeracy.[39]
2.39
The Adelaide Declaration on National Goals for
Schooling in the Twenty First Century states that schooling should develop
fully the talents and capacities of all students. More specifically the goals
state that students’ outcomes from schooling should be free from the effects of
negative forms of discrimination based on sex, language, culture and ethnicity,
religion or disability. The goals also state that the learning outcomes of
educationally disadvantaged students should improve and, over time, match those
of other students. The committee is concerned that until there is a nationally
agreed definition of the different types of disabilities it will not be
possible to measure progress in meeting these goals for various disability subgroupsub-groups.
2.40
One the same issue, ACROD told the committee at
the Canberra hearing:
I would like to emphasise that governments are increasingly
driven by performance measurement. That which is not measured or subject to
measurement is unlikely to be reflected in the allocation of resources or
policy priorities. It would seem to us important that the National Goals for
Schooling in the 21st Century and the national literacy and numeracy plan
should formally acknowledge the needs of students with disabilities and that
that should be reflected in performance measures which would then drive state
government priorities around the provision of services to these students. As
part of that plan there is a national Aboriginal education policy.[40]
2.41
The committee is aware that the Ministerial
Council on Education, Employment and Youth Affairs (MCEETYA) Performance
Measurement and Reporting Taskforce has approved a project to investigate
definitions and approaches currently in use as well as identifying issues
relevant to nationally comparable reporting of educational outcomes of students
with disabilities. The committee believes slow progress on this task to be
unsatisfactory.
2.42
The committee agrees that a nationally agreed
definition of disability, consistent with the definition of disability under
the Disability Discrimination Act is urgently required. The committee accepts
that not all disabilities that fall within the latter definition will require
significant, if any, adjustments to enable students with disabilities to take
part in education on the same basis as students without disabilities. The
challenge for education policy makers will be to decide how to define those
that do require significant adjustment and consequently require funded support
to ensure that all students are afforded equal access to education. The
committee argues that this is an important role for MCEETYA that extends beyond
the work of the Performance Measurement and Reporting Taskforce.
2.43
The committee recommends that the Commonwealth
demonstrate its national leadership role in education policy by securing the
agreement of MCEETYA to work toward the objective of establishing nationally
agreed definitions of disabilities and to ensure uniformity in nomenclature and
in reporting formats.
Recommendation 3
The committee recommends that MCEETYA develop nationally agreed
definitions of disabilities.
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