The family claim their eight-year-old son has been victimised and discriminated against over the type of pull-up nappies he wears to cope with his incontinence.

They said he should wear the pull-up nappies that have been approved by his Hunter New England Health continence nurse instead of the nappies that the school had chosen for him. 

They lodged a complaint with the commission after the school wrote to them on May 12 and said the boy’s nappies were a Work Health and Safety risk to staff and students and he could not return until he had "appropriate hygiene apparel".

The school claimed the nappies did not meet the boy’s needs and his soiled clothing had to be changed on several occasions. 

The school wrote a day later and said it had sourced pull-up nappies for the boy to wear at school and sent another letter on May 27 to say “we do not feel there is any further hindrance to [the boy’s] attendance at school”.

His parents have not sent him back to school. They said the school did not have the right or experience to select a nappy for their child. They sent the school a copy of his continence nurse's report, which said the nappies were appropriate in the short-term, as he was growing, and are still waiting on a response. 

They said communication with the school had halted and a Human Rights Commission hearing would help them seek justice for their boy. They have called for a public apology from the NSW Department of Education, damages, and equal opportunity training for department staff. 

“We’ve done nothing wrong … This has all happened because of nappies, it shouldn’t have happened, the people responsible need to be accountable for this,” the boy’s father said. 

“He can’t stand up for himself, he is relying on us to fight for his right to an education and his right to be treated fairly,” his mother added.

The family is now at the centre of a child protection investigation after the NSW Department of Family and Community Services (FACS) received a complaint about the child’s absence from school.

They have lodged another Human Rights Commission complaint about the investigation and alleged the NSW Department of Education contacted FACS about their son’s absence. The complaint also noted that FACS staff interviewed their eldest son alone at school and alleged he was extremely stressed after the interview and was seeing a psychologist to cope.

A FACS spokesman said it could not comment on the investigation but its priority was to “always act in the interest of the safety and well-being of children” and “work hard to ensure children are properly protected”.

The NSW Department of Education would not comment on the school’s actions or say whether one of its employees made the complaint to FACS. A spokesman said the school “continues to work closely with the family” and “the student has not been suspended” but disability advocate Julie Phillips, who represents the family, said communication had halted and she had been told to stop sending letters to the school.

“Children with disabilities all around Australia experience toileting accidents of a much more significant nature than [this child] at school,” she said.

“If every such child was banned due to supposed ‘OHS’ risks, a good percentage of children with disabilities would be unable to attend school.”

Police also received a complaint about the boy’s welfare and visited the family home last month. They are not investigating.

The boy has severe child autism spectrum disorder, global developmental delay and intellectual impairment, ADHD, incontinence and cannot speak.

He relies on his parents to change his nappies at home and a support person to do the same at school. They said problems at the school started earlier this year when they were told funding for his support teacher would soon run out.They said communication over that issue had ceased, although a department spokesman said “ongoing support options are currently being discussed with the family”.

* Fairfax Media has chosen not to name the family out of respect for privacy.