These key considerations should be assessed by principals when deciding to grant or refuse each individual therapy request. Each request must be tested on its individual merits. It is therefore not recommended for schools to develop a school policy based on these considerations as a ‘blanket rule’ that allows or disallows all requests for therapy in schools.
Individual circumstances of student
The overall benefit to the student is a driving consideration. Any inherent convenience to therapists or parents in having therapy delivered during school hours should be secondary to the student’s best interest.
In making a decision, principals should consider all relevant factors, including the particular family and social circumstances of the student, and the flexibility of the student’s learning program. For example, a student who fatigues as a result of their disability may benefit from receiving therapy during school hours, rather than after hours.
A student’s family circumstances may also preclude the therapy being delivered outside of school hours, or in another location. This was the case in the following example from the Barwon Area.
A student’s domestic situation meant that it was unsafe for the therapist to deliver therapy in the student’s home, and the student did not have adequate means to get to an external location to receive the therapy. The school had physical space available and accepted the therapy request under the unique circumstances.
Student access to the curriculum
The principles underlying Government school education include universal access to education and free instruction in the learning areas in Schedule 1 of the Education and Training Reform Act 2006 (Vic). In deciding whether it is reasonable for a student to access NDIS funded supports during school hours, principals should consider what impact this would have on the student’s access to curriculum, given the primary purpose of schooling is to provide educational programs to students during school hours.
Equally, a student’s access to curriculum may be improved by allowing therapy to occur during school hours. The following is a case example from the Barwon Area.
A student was living in a remote area and the commute to and from therapy was extensive. This meant the student was missing schooling due to the long commute and was arriving at school tired. In this scenario, the principal allowed the therapy to be delivered at school so the student could access more of the curriculum.
Principals must also consider the impact that an additional adult in the school learning environment may have on staff and access to the curriculum for other students. For example, if the requested therapy will occur in the classroom, this may disrupt the class or cause difficulties in the classroom teacher’s ability to deliver the lesson to the relevant student and other students.
Duty of care obligations
Child Safe Standards
The Child Safe Standards are minimum standards that apply to organisations (including schools) that provide services for children to help protect children from abuse.
The Child Safe Standards require schools to have strategies, policies and procedures in place to ensure the school is a child safe organisation. This includes having appropriate practices in place to reduce the risk of child abuse by new and existing personnel and having strategies to identify and reduce or remove risks of child abuse.
Schools should consider the Child Safe Standards when considering whether to agree to a request for an NDIS funded therapist to provide therapy on school grounds. In particular, this will include whether:
- the physical space at the school to be used by the therapist is a reasonably safe one
- if the proposed therapy will take place in a room isolated from other students, does the school have capacity to allocate an alternative space and an additional staff member to be present to supervise the therapy?
If the school does agree to a request for an NDIS funded therapist to provide therapy at school, the school needs to:
- be alert to adverse behavioural or other changes in the student that might be a symptom of abuse, or risk of abuse, whether generally or in connection with the therapy – schools must follow the where there is an incident, disclosure or suspicion of child abuse
- inform the parent(s) about what they should do if they have concerns about their child’s welfare
- inform the therapist about the school’s policies and commitments regarding Child Safe Standards (including visitor policy, code of conduct, supervision arrangements and internal reporting arrangements)
- follow the when interacting with the NDIS funded therapist.
Duty of care
Principals, as delegates of the Minister for Education, have the right to permit and refuse entry of any person to Victorian Government school premises. As an NDIS funded therapist is not a Department or school council employee/contractor, and is not under the direction and control of the principal, principals must carefully consider whether the school can fulfil its duty of care obligations to the student.
Duty of care requires principals and teachers to take all reasonable steps to reduce the risk of any reasonably foreseeable harm to students. This might include:
- providing safe and suitable premises to students
- providing adequate supervision of students, for example through line of sight to the therapy session or an additional staff member present to supervise the therapy and
- ensuring the therapist holds a satisfactory Working with Children Check
The responsibility for duty of care remains with principals and teachers. This duty of care cannot be delegated to an external NDIS funded therapist.
If duty of care requirements are not met, there may be a legal risk to both the school and the Department.
Requests for therapy on school grounds outside of school hours
Outside of school hours, the ability of principals and teachers to supervise students (and therefore discharge their duty of care) is very limited. There is no requirement for the school to appoint staff to supervise NDIS funded therapy that is proposed to occur outside of school hours on school grounds.
In relation to requests for support outside of school hours, it is recommended that the school inform and confirm with parents in writing:
- that the therapy is not organised or managed by the school or the school council and is not a school activity and
- that school staff and the school council are not responsible for the supervision of students attending the therapy outside school supervision hours.
Principals maintain the right to decline a request for private therapy sessions to occur outside of school hours, particularly if there are concerns about the level of supervision a school can provide at these times.
In some circumstances, a principal may approve such a request, if an adult family member or carer agrees to be present at these sessions.
The NDIS funded therapist and the School Council should enter into a Licence Agreement and an Information Sharing Deed prior to the commencement of NDIS funded therapy. The Licence Agreement makes it clear that schools are not responsible for the supervision of students outside of school hours.
Reportable Conduct Scheme
From 1 July 2017, principals are required to bring all allegations of 'reportable conduct' by employees, contractors, volunteers, allied health staff and school council employees to the attention of the Department's Employee Conduct Branch. The branch will then report these allegations to the Commission for Children and Young People.
There is an allegation of 'reportable conduct' where a person has a reasonable belief that there has been:
- a sexual offence (even prior to criminal proceedings commencing), sexual misconduct or physical violence committed against, with or in the presence of a child
- behaviour causing significant emotional or psychological harm to a child
- significant neglect of a child or
- misconduct involving any of the above.
The Reportable Conduct Scheme extends to NDIS funded therapists. Principals should be aware of their reporting requirements under this scheme if they permit an NDIS funded therapist to enter onto school premises to deliver services for students.
Practical and administrative capacity
Schools need to ensure they have the practical capacity to accommodate NDIS funded therapists providing therapy to students on school grounds. This includes having the physical space available to accommodate the therapy, and ensuring the school is equipped to manage the increased administration that allowing therapy might entail. This is a key consideration for specialist schools with high numbers of NDIS participants.
Disability Discrimination Act (Commonwealth)
The NDIS will fund a range of specialised supports for school-aged children with a disability. However, critically, the NDIS does not replace or duplicate the responsibilities of the Department.
In accordance with relevant anti-discrimination laws, schools remain responsible for providing ‘reasonable adjustments’ to ensure that students with a disability are able to access their education on the same basis as their peers without a disability. Schools are legally obliged to provide these adjustments, regardless of whether or not a student is also receiving NDIS support or other funding (for example, Program for Students with Disability (PSD) funding).
Reasonable adjustments may include (but are not limited to):
- modifying programs, adapting curriculum delivery and assessment strategies
- providing ongoing consultancy support or professional learning and training for staff
- developing and implementing individual education plans, health support planning and behaviour support plans
- providing educational software, iPads, or other assistive technology
- modifying schools and classrooms to enable physical access to premises
- providing access to the regional Health Wellbeing and Inclusion Workforces.
The NDIS does not fund therapy for the purpose of enabling a student to access their education. A school’s legal obligation under the Disability Discrimination Act 1992 (Cth) is to ensure students with a disability can access their education on the same basis as their peers without a disability. This may include making ‘reasonable adjustments’ like those listed above.
However, there is no legal obligation on principals to approve a request for NDIS funded therapy. This is because NDIS funded therapy is generally not required to enable the student to access their education.
Charter of Human Rights (Vic)
The (Charter) requires public authorities to act compatibly with the Charter and give proper consideration to relevant human rights in making decisions. This obligation applies to decision makers involved in assessing requests for NDIS funded therapy in schools.
School council support
School council support is required for the Licence Agreement to use school premises, which must be signed before the NDIS funded therapy can commence at school. The Licence Agreement is set out in more detail in and a template Licence Agreement is available on the .
Reviewed 22 September 2021