Unjustifiable Hardship: What Schools Must Prove Under the DDA and DSE 2005
When a Victorian school says "we just don't have the resources," many parents assume the conversation is over. It isn't. Under the Disability Discrimination Act 1992 (Cth) and the Disability Standards for Education 2005 (Cth), the school is not the one who gets to decide whether an adjustment is too hard — they are the one who must legally prove it.
Understanding the unjustifiable hardship defence, and exactly how high that bar is set, is one of the most practical pieces of legal knowledge you can carry into an SSG meeting.
What "Unjustifiable Hardship" Actually Means
The Disability Discrimination Act 1992 (DDA) prohibits schools from discriminating against students on the basis of disability. The Disability Standards for Education 2005 (DSE) translate this into specific obligations: schools must take reasonable steps to ensure students with disability can enrol, access, and participate in education on the same basis as students without disability.
The DSE does not require schools to provide every adjustment a family requests. There is one legal exception: if making an adjustment would impose an "unjustifiable hardship" on the school, the school may decline it.
But the phrase "unjustifiable hardship" is not a general permission slip to say no whenever something is inconvenient or expensive. The DDA sets out a specific, multi-factor test that must be applied:
- The nature of the benefit or detriment to the student with disability
- The financial cost to the school, including any available grants or subsidies
- The effect the adjustment would have on other students and staff
- Whether the school has access to financial assistance through the Department of Education's Tier 2 or Tier 3 Disability Inclusion funding
- The school's overall financial resources and enrolment capacity
Crucially, the burden of proof sits entirely with the school. If a principal claims an adjustment is unjustifiably hard, they must demonstrate it — with evidence. You are not required to disprove their claim.
Why Tier 2 and Tier 3 Funding Changes the Calculus
One of the most important points families need to understand is how the Disability Inclusion (DI) model's funding structure affects hardship claims.
Victorian government schools now receive:
- Tier 1 funding through the Student Resource Package — general operational funding for all students
- Tier 2 school-level funding, calculated based on enrolment characteristics, to build inclusive capacity across the whole school
- Tier 3 student-level funding for students with complex, high-intensity needs, accessed through the Disability Inclusion Profile process
When assessing whether a hardship is "unjustifiable," the law requires schools to account for all available funding before claiming they cannot afford an adjustment. A school sitting on unspent Tier 2 funds, or one that has not pursued an available Tier 3 assessment, faces a very weak hardship argument.
In 2024, 182,866 students in Victorian government schools received an NCCD adjustment — 27.6% of the state's total student cohort. The funding framework is explicitly designed to support that scale of need. A blanket claim that "we don't have the money" has become increasingly difficult to sustain.
What This Looks Like in Practice
The most common scenarios where schools invoke hardship include:
"We can't provide a full-time aide." This might be a legitimate resourcing challenge, but the school must show they have sought Tier 3 funding and that the student's profile genuinely doesn't meet the extensive/substantial adjustment threshold, not simply that employing an aide is expensive.
"We can't modify the curriculum for every subject." Pedagogical adjustments — like oral assessment instead of written, or curriculum materials in alternative formats — are generally low-cost. Claiming hardship here requires far more evidence than for expensive physical modifications.
"The refurbishment would cost $50,000." Physical modifications carry the strongest hardship arguments, but the school must still show they have pursued available grants, that the cost is genuinely disproportionate to the benefit, and that no lower-cost alternative exists.
"We can't provide a quiet sensory space." This adjustment routinely costs very little — an existing room, a beanbag, a visual schedule. If the school makes this claim, ask them to put it in writing with a full cost justification.
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Disability Discrimination Under the DDA and Equal Opportunity Act 2010
Beyond the hardship test, it's worth understanding the two layers of discrimination law that apply to Victorian schools.
Under the federal DDA 1992, discrimination occurs when a person is treated less favourably because of their disability, or when a condition, requirement, or practice disadvantages them. The DSE 2005 operationalises this for education settings.
At the state level, the Equal Opportunity Act 2010 (Vic) (EOA) adds an important dimension: it covers both direct and indirect discrimination, and it imposes a positive duty (Section 15) on organisations to proactively eliminate discrimination. Government schools are bound by both the DDA and the EOA.
This means a school cannot simply wait for you to complain. They are required to take proactive steps to identify and remove discriminatory practices — which includes identifying students who may need reasonable adjustments and acting without being pushed.
How to Respond When a School Invokes Hardship
When a school declines an adjustment on hardship grounds, take these steps:
Ask them to put the hardship claim in writing. Verbal claims are easy to walk back. A written refusal creates an accountability trail.
Request their cost justification. Ask specifically what the adjustment would cost, what funding they have explored, and what alternative adjustments they considered.
Check whether a Tier 3 Disability Inclusion Profile has been completed. If not, ask why. The profile is the mechanism through which intensive student-level funding is assessed.
Compare the claimed cost to available Tier 2 funding. If the school is receiving school-level Disability Inclusion funds and declining to use them for your child's needs, that weakens their hardship argument significantly.
Respond in writing. Acknowledge their claim, state that you believe the adjustment is reasonable under the DSE 2005, note that the hardship burden rests with them, and request a formal SSG meeting to resolve the matter.
If the school maintains their refusal after you've documented your position, the next step is escalating to the DET Regional Office, then to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), which provides free conciliation for discrimination complaints.
What Schools Often Get Wrong
Schools sometimes confuse two separate questions: (1) whether a student qualifies for Tier 3 individual funding, and (2) whether the school must provide reasonable adjustments. These are not the same question.
Even if a student does not receive Tier 3 funding, the school's DSE obligation to provide reasonable adjustments remains in full force. Adjustments must still be provided using Tier 1 and Tier 2 resources. The absence of individual funding is not a hardship defence.
This is one of the most consequential misconceptions in the Victorian education system. In 2024–25, education advocacy issues accounted for 62% of all contacts to the Association for Children with a Disability (ACD), with a large proportion involving schools falsely asserting they had no obligation to adjust without diagnosis-specific funding.
The Victoria Disability Advocacy Playbook (/au/victoria/advocacy/) includes a step-by-step framework for responding to hardship claims, including draft letter templates citing the specific DSE 2005 provisions. If you're heading into a meeting where this is likely to come up, it's the preparation that turns a deflection into an accountable commitment.
Summary
When a Victorian school says they cannot afford to support your child, the law does not simply take them at their word. The unjustifiable hardship test is demanding, the burden sits with the school, and the funding structure of the Disability Inclusion model means many hardship claims will not survive scrutiny. Understanding this — and being prepared to say so, in writing — fundamentally changes the dynamic of your advocacy.
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