What is it about?

The rollercoaster adventures of parenting three kids, dealing with disability and mental health - and discussing disability discrimination and how to tackle it.

Tuesday, 5 March 2013

My response

Dear Steve

Thank you very much for your prompt response regarding BooBoo's school swimming. It allowed me to manage her expectations in advance, which I certainly appreciate.

It wasn't easy to explain your decision to her. As you can imagine, BooBoo was certain she would be able to swim with her friends in the big pool because surely "after mummy explained it to the swimming boss, he would see that is fair". I admit, I thought the same.

There are a number of points that I don't quite understand in your response. However, I will leave them for what they are for now. I can explain them some other time if you like.

My two big issues that remain unanswered are those of inclusion and discrimination.

You write that if you allow BooBoo to join her friends now, "what happens when BooBoo's fellow students move again, what expectation are we setting for her and her future development."

Well, you would be setting the expectation of inclusion. That is exactly what it's all about. I would fully expect her to move on with the rest of the group -because with her floaties on she can. There may well come a point where she can't - and we will cross that bridge when we get there. BooBoo is quite aware of her physical limitation, after all, she lives with them every single day of her life. Managing her expectations is a regular (and often sad) part of my parenting job description.

Your letter states "there is some resilience (...) to integrate higher functioning special needs children" but that you "are however a "mainstream swimming organisation". In plain English, that translates to 'BooBoo is too disabled to be included'. I believe that is discriminatory.

In addition, you point out that the school's "program on that day is at capacity in the 25m pool" and "[t]he addition of BooBoo to this class with another adult in the water will not allow the successful conducting of the class for the other students and (...) cannot happen".

The adult (either the aide or me) only enters the water when BooBoo does - and more so for the ease of your swim teachers so they don't have to worry about BooBoo. I'm quite happy for no additional adult to join her in the pool. But really, the fundamental question here is: what would you do if BooBoo was not disabled? Would you randomly choose some non-disabled kids to go in the paddling pool? I dare say you would find a different solution.

The Disability Discrimination Act of 1992 states quite clearly that it is unlawful to discriminate against someone on the basis of their disability.

The Disability Discrimination Act (DDA) (part 1 point 5) read as follows:

​(1)​For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
​(2)​For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

​(a)​the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

​(b)​the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

​(3)​For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

With regards to sports, the DDA states (part 2, division 2, point 28) that "[I]t is unlawful for a person to discriminate against another person on the ground of the other person’s disability by excluding that other person from a sporting activity."

There are, of course, exceptions under the Act, most notably those of "unjustifiable hardship" . With regards to sports, the DDA does clarify that "discrimination only occurs when the disabled person is "reasonably capable of performing the actions reasonably required in relation to the sporting activity"

Furthermore using the terminology of the DDA, letting a little girl swim with floaties is a "reaonable adjustment" and doesn't seem like "unjustifiable hardship". Furthermore, I believe BooBoo is certainly "reasonable capable of performing the action" of swimming in the big pool when using her floaties.

BooBoo's arm floaties can be considered her wheelchair in the water and as such, are "disability aids". The Act defines a disability aid (part 1, point 9.3) as any "equipment that (a) is used by the person; and (b) provides assistance to alleviate the effect of the disability."

Since the floaties alleviate BooBoo's lack of balance due to her Cerebral Palsy, they are indeed a disability aid under the DDA.

All I'm asking, Steven, is that BooBoo be fully included with her classmates in her school swimming program. I'm sure you can understand the importance of belonging. All we are talking about is a little 6 year old girl who wants to have a go with her friends.

The children you teach in your swim classes today are the leaders of tomorrow. Please demonstrate by your actions how not to discriminate. Please show the children how a simple act enables real inclusion.

With the above understanding of the DDA I ask you and Killarney Swim School Pty Ltd to reconsider your decision.

Heike Fabig
(aka BooBoo's mum)


Anonymous said...

Well Done!!!

Alison said...

Awesome letter.

I can't wait to hear how they respond!

Billie said...

Fantastic response. I hope it touches his cold, shallow, too small heart.

Glee said...

Perfect Heike :) hug

Anonymous said...

i read your reply and if the letter from the pool is true that your child is at a lower level than her friends in the big pool would it not be discrimination to the other kids in the class if a child of lower swimming ability not because of her disability was in the class and had to have more of the teachers attention?

Rhonda Stafford said...

Hey, I just stumbled across your blog. What a great letter! Its articulate and logical arguments (with gentle reminders of relevant legislation) are so persuasive that I would be surprised if this isn't a home run! Definitely keep us updated on the response! Thank you not only on behalf of your own daughter but disabled children everywhere who are treated as "less than". In too many facets of life are special needs kids left behind in the "baby pool". Anyway, this is awesome. Also, in case you're interested, here's a link to my favorite CP-related website: CP Family Network. It's full of great resources and information as well as being a link to the worldwide CP community. Check it out! And keep it up, super mom!

Glee said...

so what happened in reply Heike?