Wednesday, 12 May 2004
Dáil Eireann Debate
An Leas-Cheann Comhairle: Amendments Nos. 1, 2, 3, 38, 46, 49, 62, 109, 209 and 210 are related. Amendments Nos. 37, 45, 48, 52, 58, 63, 103, 104, 147 and 173 are a related cognate group. Amendments Nos. 53, 59, 64, 104 and 106 are a related cognate group also. Amendments Nos. 1 to 3, inclusive, 37, 38, 45, 46, 48, 49, 52, 53, 58, 59, 62 to 64, inclusive, 103 to 106, inclusive, 109, 147, 173, 209 and 210 may be discussed together by agreement.
On Committee Stage I said that I would try to accommodate, as much as I could, the amendments put forward by Opposition Deputies and suggestions for improvements to the Bill. I know it is difficult but I hope the Deputies opposite will accept that we have incorporated a number of the positive suggestions they made. I look forward to a workmanlike session on these amendments.
Deputy O’Sullivan raised on Committee Stage the declaration of principles, and they are contained in amendment No. 16. We had a good discussion on that and having considered the matter I think the most appropriate location for these provisions is in the Long Title at the beginning of the Bill. The amendment I have proposed refers to international human rights, inclusive education and the involvement of parents, all of which can be accommodated here.
Deputy O’Sullivan also referred to equality of access and the individualised assessment of needs. These are already comprehensively dealt with in the body of the Bill. In particular, I draw her attention to sections 2, 3, 4 and 13. References to progressive achievement and rights-based systems are inherent in the thrust of this Bill and are therefore not necessary elsewhere.
Having listened to concerns on Committee Stage regarding the negative connotations — in fairness, Deputy Stanton was very consistent in this regard, as were other Deputies — of the phrase “educational disability”, I have decided to remove this definition and replace it with a more accepted and less divisive term, “special education needs”. Amendments Nos. 2, 37, 45, 48, 52, 58, 63, 103, 105, 109, 147, 173 and 210 have the effect of replacing the term “educational disability” with “special education needs” in various parts of the Bill. Amendment No. 209 brings the amended Education Act definition of disability into line with this new approach. For that reason it is unnecessary to accept amendments Nos. 3, 38, 46, 49, 53, 59, 64, 104 or 106. I hope Deputies will accept that the thrust of their amendments is incorporated in the amendments I have tabled.
I do not accept amendment No. 62 because I believe the council or the health board should have the power to refuse a request for an assessment when it genuinely believes there are insufficient grounds to support the view that a child has special educational needs. If it had to carry out an assessment in the belief that none was required it would make a mockery of the statutory system we are attempting to establish and constitute a misuse of limited resources. A parent can appeal a decision to refuse and under another amendment I have tabled a decision on this must be taken within six weeks.
Ms Enright: I welcome many of the amendments the Minister has tabled. He obviously listened to the discussion on Committee Stage and to the submissions made to the Committee on Education and Science by interested groups. The Minister has made many and significant improvements with some of his amendments.
The debate on this Bill will end at 1 p.m. tomorrow and we want to get through it as far as possible. We object to the guillotine but we will not speak for too long on any point so we may finish the Bill. Our focus has been on the support that should be given and the child’s needs, not on the disability, and the Minister reflects that in some of his amendments. The definition of “special needs” the Minister is including significantly improves the previous wording and is informed by international best practice, something we argued for on Committee Stage as well.
Ms O’Sullivan: I also welcome many of the Minister’s amendments. It demonstrates that when there is good interaction between the Minister and the Opposition on Committee Stage, legislation is strengthened. Many of the improvements we see today result from that interaction.
I am glad the Minister has chosen to replace the word “disabilities” with the words “special needs” in the legislation. The Bill was previously inconsistent because both expressions were used. It improves it and is more correct in describing those children whose special needs would not be described as a disability. We want to be as inclusive as possible and to widen the definition of educational disability, particularly in response to the concerns expressed by the Dyslexia Association and those representing people with ADD and ADHD that they might not be included in the original definition. We have all tried to ensure the legislation is inclusive.
Ms O’Sullivan: Amendment No. 16 contains the declaration of principles. I take the Minister’s point that he has incorporated most of those principles in the title of the Bill. I am disappointed, however, that amendment No. 64, which suggests that parents should have an absolute right to an assessment of need, will not be accepted. When Government Members spoke of rights based legislation, they consistently said there is a right to an assessment of need but if this amendment is not accepted there is no absolute right because if the councils decide there is no genuine case for an assessment they can refuse to carry it out. The parents, therefore, do not have an absolute right and I am disappointed that the Minister will not accept the amendment addressing that.
In this Bill we will spend a great deal of time talking about the right to an assessment of need, how that assessment should happen and who should be involved. The Department of Education and Science, however, is moving away from the direction of the Bill. The Minister has decided to move towards a weighted system where children with milder special needs will not be assessed in the immediate future but schools will be expected to cater for their needs under a weighted teacher allocation system. If a school is a particular size, it will be expected to have a particular number of children with special needs and to cater for them within pre-ordained guidelines. This moves away from the concept of each child being treated as an individual when it comes to special needs.
Until now, children had the right to a psychological assessment, although schools, depending on the number of children in the school, could only have two per 100. At least, however, it was available. While there are currently delays — 7,000 children have been assessed but have not had their needs addressed — it has been the case until now that the children are treated as individuals and the schools are not meant to fit into a formula of how many special needs children will attend in a given year. Why is the Minister moving in that direction when the legislation treats children as individuals? I have been contacted by schools with up to seven children in one class who have been assessed and are awaiting service. Those schools would not be able to cater for all the children’s individual needs under the system proposed to begin in September.
The Minister must address this issue because if people will not believe this legislation will make a difference to their children if the Department of Education and Science moves in a totally different direction from it.
I agree wholeheartedly with what Deputy O’Sullivan has said in amendment No. 62. I cannot envisage a situation where parents would submit their child to an assessment unless they felt there was a real need. The problem with what the Minister has included in subsection (5), whereby a health board or the council may refuse to accede to a request under subsection (3) if it is of the opinion that there are insufficient grounds to support the requesters’ opinion that the child has an educational disability, is that parents will have to prove a case before they can have an assessment carried out. That means we are back to where we were before, whereby parents would have to have an assessment carried out first, perhaps at great cost, and present the findings to the council or health board in order that one of them could carry out a second assessment.
I can understand the Minister’s point of view that he is afraid of spurious claims for assessment. However, one of the rights that we have to include in such legislation is that to an assessment. Perhaps, before the Minister brings the Bill to the Seanad, he should examine this, if he is not going to accept the amendment. He should look and see. In the Bill he is essentially saying prima facie evidence of some sort should be produced. How else are those making the request to present their case? I am sure that the Minister can see the problem. If a parent of a child is of the view that the child has a special need, he or she must present evidence of some sort to the council or health board to back it up. What kind of evidence is required is not specified. Will the child need a psychological or some other form of assessment?
I would be happy if the Minister could address that issue and perhaps let us know his thoughts on it. It is a real problem, especially if the parents do not have much experience of dealing with officialdom and those who carry out assessments and so on. As the Minister is aware, some parents are overawed by officialdom. If a parent feels his or her child is not learning as he or she should and a request is made, perhaps some kind of preliminary assessment could be incorporated to see whether a further in-depth assessment is needed. We must put something in.
The Bill is much improved with the Minister’s amendments and so on. We improved it on Committee Stage working together, and major improvements are now coming. However, there is one issue that must be teased out. There should be a right to some form of initial assessment if a parent feels his or her child needs such an assessment.
I am delighted that the term “educational disability” has gone. It made no sense, and many were annoyed, worried or anxious about it. The term “special educational need” is much better. The Minister is leaving in his own definition of “disability”, which seems to be exactly the same as that for “special educational need”. I wonder whether it is required. As such, it may need to be re-examined. I do not have too much of a hang-up about it but I know that the NDA was of the view that the definition of “disability” in the Education Act 1998 was better. What the Minister proposes is not a medical definition but is exactly the same as that for “special educational need”. I am not sure whether that is necessary. Perhaps the Minister will look at the matter again.
The fact that we are calling this the Education for Persons with Disabilities Bill 2003 means that we may need to define “disability” somewhere. The Minister is changing the definition under the Education Act 1998 by inserting this one. I wonder about this. I am not totally happy about it but at the same time the Bill is much improved overall. We have no problem with many of the amendments brought forward, since we proposed them ourselves.
Mr. Crowe: I welcome the extremely positive changes to the Bill and also the fact that the Minister engaged on Committee Stage. This reflects the amount of work done on the Bill and the involvement of the many groups which came along to the committee. It was a pointer for the future that the Bill was much more inclusive. It helped to settle many of the groups and individuals who came along to the committee that they were listened to and given an opportunity to be heard. The Bill is now much more inclusive and revolves around the individual rather than the group. The big worry for parents is whether sufficient resources will be put into backing up the Bill. That is a significant worry for many families and groups. People are expecting us to deliver on their great expectations and the Bill.
I have a difficulty with the definition. While the Education Act 1998 was very medical in its definition, it was also very broad, particularly in the last section, where it talked about “a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour”. That definition was much more open than what the Minister is proposing in the Bill. However, I welcome the fact that there have been changes. I have not taken in all of the motions that he has accepted, as I was late coming in, but there are substantial changes.
There is a great deal of work to be done on the Bill and, like other speakers, I am concerned that a guillotine is being applied. We have already spent a great deal of time on it, and an extra few days would have benefited the Bill. It would have helped those listening at home better understand its intricacies. The fact that we are not spending more time on the Bill represents a missed opportunity.
Mr. F. McGrath: I welcome the discussion and debate on the Education for Persons with Disabilities Bill 2003 and generally agree with my colleagues’ remarks. I welcome the positive aspects of the proposed legislation. However, I remind the Minister and everyone involved in the debate that we must constantly remind ourselves to focus on the needs of the child. That must be the priority in the legislation. While I welcome the improvements, I still think we have a long way to go regarding the education of children with disabilities.
I welcome the Minister’s remarks where he spoke of listening to the voices of the parents of children with disabilities and the strong influence of human rights, which is a progressive step. On a cross-party basis, that is the direction in which we should be moving regarding children with disabilities. We are talking about rights and listening to the voices of parents. From a parents’ perspective, it is tough going and difficult enough without having bureaucratic barriers put in front of one all one’s life. I know this from direct experience. I welcome the strong emphasis on the needs of children.
Regarding the debate on special educational needs, I have no major baggage about the term “disability”. However, from a teacher’s point of view, all children have special educational needs, even those without a disability or learning difficulty. In my experience, there are many extremely bright and intelligent children in primary schools who are excluded. From an educational point of view, they are often neglected and left to move ahead on their own because they are so good. I would like to ensure a good teacher, and anyone with a broader view of education, knows that every child has special needs and believe it is important to do so.
The right to an assessment of needs has to be guaranteed. I support Deputy O’Sullivan on this issue. It is important that we do not leave that open or woolly in any way. It has to be guaranteed because that is the way we will deal with the issue from the parents’ viewpoint.
We must also remind ourselves as regards this Bill that there are thousands of children with disabilities and special educational needs. The purpose of the legislation is to intervene and to try and provide a service for these children. There are children with Down’s syndrome, dyslexia or who are blind and who have other educational needs and disabilities. That has to be the focus of today’s amendments. It is important we remind ourselves that many children with disabilities are making a positive contribution to the education system. It is not all bad news, as is often perceived. A child with Down’s syndrome can have a positive impact on other children in a primary school setting. That must be recognised. We must also consider the impact of a child with a physical disability and the way that sets up teams within the school. These young children can make friends for life from their time in school. I know from direct experience as a parent of a child with a disability that there is much positivity surrounding this issue. We should not always see children with disabilities as a problem but they have special educational needs.
Irish society and the education system should focus on these matters as well. I urge the Minister to look at the needs of the child throughout the legislation and in today’s amendments. As regards the Education Act 1998, I take the point about its medical aspects. However, I wish to ensure that children with Down’s syndrome, dyslexia and other disabilities are included in the legislation and in the amendments.
Mr. N. Dempsey: I thank the Deputies who contributed and who have generally been positive in their responses to the amendments I have tabled. For the benefit of those Deputies who did not make it for the beginning of the debate, I started by acknowledging the positive contribution that Deputies across the House made to this Bill on Committee Stage. I would reiterate that the amendments I have put down in many cases are as a result of the discussions we had and the proposals made by the Deputies opposite. I agree with Deputies that this is what Committee Stage of a Bill should be and we should be positive and constructive in receiving and listening to amendments put forward. I hope the Report Stage amendments reflect that and indeed the contribution made by people outside the House, both directly to the committee and to individual Members.
I agree with Deputy Finian McGrath that the focus in this Bill has to be on the needs of the child. In fairness, I believe that has been the focus on all sides since the process started. I could not agree more about the last point he made concerning the positive impact that children with special needs can have on schools. We have all seen good examples of that. It opens up and enriches children to have a child with special needs in the school and perhaps makes them more tolerant and open to difference.
I would like to address the particular concern raised by Deputy O’Sullivan about the weighted system removing the right to assessment and appeal. I assure the Deputy it does not do so. What it does is provide resources to schools before they even know, in some respects, whether or not they have children with special needs in their midst. It gives the schools the opportunity to deploy the resources they have. It is at that stage that many aspects of the Bill will come into play. If parents are not satisfied that the needs of their children are being met, if the principal is not satisfied that the child is making as much progress as he or she should, they can respond as well and look for the assessment. They may also look to the individual education plan for any child in their care to decide exactly what will be provided for him or her. I reassure the Deputy that the change to the weighted system is not going to take away the individual education plan or anything else for children. It is designed to put resources into the school to allow it to plan in advance for the needs of children coming in.
We will talk about the definition of disability in the next group of amendments, so I am not going to go into that. Another point that has been raised that we will have to agree to disagree on is the question surrounding the absolute right of assessment. I do not know how often it might happen but we have to guard against an absolute compulsion being put on a health board or council to carry out an assessment when it is known, based on evidence, that there is insufficient grounds to support the view that the child has special educational needs. That is not a decision that is going to be taken lightly by the schools, etc. I accept what Deputy Stanton says that parents will not lightly look for assessments either. However, there are and there will be cases involving parents who, for one reason or another, might not be too objective as regards their own children. They will always rightly look for the best for themselves but they may be unreasonable in looking for an assessment. If there are insufficient grounds I do not believe we should use scarce resources by compelling the council or the health board to provide an assessment. To be quite frank, schools, the council and those involved in this will err on the side of being overly cautious because of the danger of litigation and so on. There is sufficient protection as regards the provision of assessments.
Ms Enright: I want to raise two matters. As regards the Minister’s final point, if Deputy O’Sullivan’s amendment is not accepted, will there still be an appeal mechanism for parents if the child could not get——
Ms Enright: The second matter comes under the third group of amendments and involves the new definition of “special educational needs” and “disability”. Amendments Nos. 209 and 210 refer to this issue. If the Minister is defining disability in the same way as he is defining special educational needs, I would much prefer his new definition of the latter, but I still have the old concern as regards disability. The Equal Status Act and the Employment Equality Act use the older definition of disability. I am not necessarily sure section 51 is now relevant. Maybe it is and, if so, I am sure the Minister will explain why. Perhaps he could think about this and respond. The phrase “special educational needs” already has a different meaning within the 1998 Act, although the one put forward by the Minister is better. However, the disability definition is again changed and I would prefer to see consistency in so far as that is possible.
Ms O’Sullivan: The Minister makes the point that some parents might look for an assessment and there might be no need for it. On the other hand, from my experience of health boards, they are quite capable of refusing assessments as well and perhaps without adequate reason. A certain level of subjectivity is inevitable on the part of parents and the health board.
I am still not happy the Minister is not accepting this amendment but I take the point that there is a right to an appeal to the appeals board. However, I do not share the Minister’s faith in either the health boards or the councils and fear they would see this as an opportunity to reduce the number of cases for which they must provide resources.
Mr. Stanton: On amendment No. 210 the Minister says “disability” means “disability”. That is the effect of the amendment. All the other words qualify “disability” so it means enduring disability, physical disability or sensory disability. It is not really a definition. That is why I say the other definition is more objective, although it is medical. The gap between the Minister’s proposal and our suggestion is not great and it probably needs only a little more tweaking to get it right.
The Minister must agree that parents know their children better than anybody and may feel their child has a special educational need but cannot fully articulate that or provide solid evidence beyond saying the child is not progressing. I have encountered such cases. When the Minister brings this to the Seanad would he consider, to address Deputy O’Sullivan’s point in amendment No. 62, providing for a preliminary assessment or prima facie evidence whereby a preliminary assessment can be made? This would not require large resources. As it stands, a parent can make a request which can be refused leading to upset. If even one case slipped through the net where the parents were right but could not provide evidence that would satisfy the health board or the council, it would be one case too many. Besides, we do not know how high the health board or council will set the bar on the level of evidence required. If parents feel there is something wrong is that sufficient to start an assessment process or must they go away and have another assessment and present written evidence from a psychologist or speech therapist? We need clarification on this.
Mr. Crowe: Amendment No. 62 was rejected on Committee Stage. It would remove the right of a council or health board to refuse to assess a child on the basis there are insufficient grounds for believing he or she has an educational disability. The Bill allows for a council or health board to refuse to carry out an assessment of the child if requested to do so, if it believes there is no evidence to support the claim the child has special needs. There is little indication of where it will obtain the evidence on which to make the decision if no assessment is carried out. I was not convinced by the Minister’s efforts to claim otherwise on Committee Stage.
The parents who see their child every day of the week, every month of the year and want an assessment carried out must be seen as having good grounds for making such a request. A health professional, however skilled, who sees a child for only a few minutes every month cannot replace the opinion of a worried and conscientious parent. The argument for the safeguard of using the independent appeals process if an assessment is refused was advanced on Committee Stage for rejecting this amendment. It is worrying that the Minister is proposing an appeals board. When the Opposition expresses doubts about or highlights an issue it does so because it believes the issue might cause problems later. That is the basis on which we are proposing this. It is not clear that the appeals board can sort this out. Why make parents go through the appeals process if they believe a child has special needs? The parent should be able to request an assessment from the health board or the council. If that is refused it will go to the appeals board. There should be an automatic right to have an assessment conducted.
Mr. F. McGrath: Deputy Stanton raised a very important point on the question of the parent’s view, feelings or gut instinct. I know from personal experience that parents have often been ahead of the professionals in diagnosis. In one case of a severely mentally handicapped child the parents had a hunch there was something wrong but it took two years and two assessments before the professionals arrived at a diagnosis. There are children with intellectual disabilities whom we cannot afford to exclude. We must constantly listen to the views of parents because their diagnosis and gut feeling is correct in 99% of cases I have encountered. Many of these were very serious cases in which the child looked physically all right but after two or three assessments was found to have a severe intellectual disability. It is important the Minister take this on board.
Mr. N. Dempsey: I do not have a great deal to add to my earlier comments except that in the overall context of this debate there is a presumption in the Bill in favour of the child and the parents, and in favour of action. To allow the amendment under discussion would make way for exceptional cases but I am not suggesting every parent in the country will abuse the situation. In a case where the council or health board has found that a child does not have special educational needs, under amendment No. 62 the parent, regardless of that previous decision, could continue to apply and seek assessments for the child. That is the other extreme.
Mr. N. Dempsey: No. The child does not have to wait 12 months under the system we propose. The health board will be involved with a child aged less than four years. While health boards are less than perfect there are provisions in place for medical and developmental assessments to take place as the child grows. If something shows up in those the council or health board would have to believe that there were developmental grounds to support the view and developmentally they would have evidence to support that. The council and the school will have the child assessed. No one can seriously suggest that if a teacher or school principal thinks a child has special educational needs he or she would not immediately send the child for assessment. The teachers will want that because it means extra resources for the school. The thrust of the Bill and the system, imperfect as it is, will not allow a child with genuine needs pass through the system. The Bill will consolidate and ensure that does not happen.
This technical amendment was discussed on Committee Stage. The Law Reform Commission has called for greater use of plain language in the drafting of legislation. The proposal was adopted in previous legislation. The Minister undertook to raise the matter with the Office of the Parliamentary Counsel and come back to us on Report Stage. In light of that, I urge the Minister to accept these four amendments.
Mr. N. Dempsey: I raised the matter with the Parliamentary Counsel and was informed that in certain contexts the word “read” is preferred to “construed”. However, in this case, the Parliamentary Counsel’s office said that it is appropriate to use “construed”. For that reason, I do not propose to accept the amendment. As the Deputy said, it is a technical amendment and, in this case, the more obtuse wording is preferred.
This amendment was introduced on Committee Stage. It concerns the definition of educational disability. Although some support was evident for it, it was defeated. We continue to have concerns about the definition of disability. We must compare the definition of educational disability contained in the Bill with the existing definition in the Education Act 1998, the Equal Status Act 2000 and the Employment Equality Act 1998 to see which is more inclusive and progressive. The definition in the 1998 Act was justifiably criticised on Committee Stage. However, I contend that the definition in the 1998 Act is better and broader than that contained in the Bill. I acknowledge the improvements introduced by the Minister in January.
One of the problems raised on Committee Stage that has not been addressed is the definition of the word “enduring”. I understand Deputy O’Sullivan intends proposing an amendment in that regard. The phrase “physical, sensory, mental health or intellectual impairment” is more restrictive than the definition in the 1998 Act. The definition in section 2(1)(e) of that Act which refers to “a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement” is broader. The proposed definition may not cover a child’s inability to learn because of emotional problems. There is merely an indication that future impairments can be prescribed from time to time. Section 2(1)(d) defines disability as “a condition or malfunction which results in a person learning differently from a person without the condition or malfunction”. Again, that appears to be a more inclusive definition than the one proposed.
The Minister has failed to make the case that the proposed change to the definition of educational disability in the Bill is an improvement on the existing definition. The alteration is a retrograde step. I urge the Minister to accept the amendment.
Ms Enright: I will repeat what I previously said on the definition of disability, as the Minister did not have an opportunity to answer. Deputy Stanton made a similar point regarding the definition of special educational needs. Does the Minister consider the definition of disability in the Bill to be the most appropriate one in light of fact that it is different from the one in the Education Act 1998 which is the one many groups have come to know and use? Disability does not change and I do not see the need for a change in its definition.
Mr. N. Dempsey: I agree that there should be consistency between the Bill and the Education Act 1998. We are trying to achieve that, especially in regard to the definition of disability. I remind Deputies, whom I am sure listened carefully, and some tabled amendments in this regard, that a number of people who made submissions were not satisfied with the definition of disability in the 1998 Act.
With due respect to Deputy Crowe, I do not think going back to that definition would satisfy many of the people who made submissions. I would prefer to address the matter the other way around, which is what I am doing here. It is intended that the definition of special educational needs proposed in the Bill would be the common definition, rather than that contained in the Education Act 1998. From now on, it would apply in both Acts.
Amendment No. 12 is based on the social rather than the medical model. I believe it is a fair interpretation of what people said to me on Committee Stage. Again, because of what Deputies and various groups said, it is an attempt to move away from negative or pejorative language. We had a lively and considered debate on the use of phrases such as “disability”, “educational disability” and the one which exercised Deputy Stanton, “impairment”. There was an overwhelming feeling that such phrases conjured up negative connotations from which we needed to move away.
At the time I undertook to examine what was said and to try to incorporate the spirit of that into the legislation. I gave it careful consideration and brought forward a series of amendments to deal with the issue. The primary effect of the amendments is to remove the term “educational disabilities” from the Bill and replace it with the term “special educational needs”. The services available under the mechanisms of the Bill still relate only to those children whose special needs arise from a disability as opposed to some other cause. One of the difficulties we discussed was the possibility of people claiming to have a special educational need who may not have a disability. We are removing from the proposed legislation what was perceived to be overly negative language and introducing a less divisive term.
The Title of the Bill will be changed to the Education for Persons with Special Educational Needs Bill. The power of the Minister to prescribe various disabilities or special educational needs is being removed. The application of the Bill will be allowed to develop organically, objectively and more dynamically than would have been possible if we were relying on regulations to be made to include certain conditions as they became apparent.
The term “intellectual disability” in the definition of special educational needs has been replaced with “learning disability” which is considered to be broader and more contemporary. This arises from an amendment tabled by Deputy O’Sullivan on Committee Stage. I hope Deputies will consider the changed definitions meet much, if not all, the concerns raised by them. Later amendments will provide an opportunity for more detailed discussion of the matter.
Mr. Stanton: I warmly welcome what the Minister is trying to do. The only word in the amendment about which I have a concern is the word “enduring”. This matter has been raised previously. I refer to what it means because it is not defined. People can have conditions that they experience periodically but they would not be enduring. The Minister might reconsider the use of this word.
In the definition of disability, the Minister is saying that “disability” means disability. I accept it is qualified, but I am not sure whether it could give rise to problems in legal circles at a later date. The Minister does not say what “disability” means; he says that “disability” means disability. That leaves it up to others to try to define what “disability” means in this context and that may give rise to legal problems elsewhere. I point out those two matters to be helpful to the Minister.
Mr. N. Dempsey: I am not being disrespectful to the Deputy, but we will deal with the definition of the word “enduring” in a later amendment. I am aware of the point the Deputy made regarding the definition of “disability”. We went into it in some detail with the parliamentary counsel who is quite satisfied, as are we, that it will not give rise to a legal difficulty.
My amendment No. 12 replaces the definition of educational disability. I tabled it in response to the strongly expressed views of members of the committee in this regard. It also reflects the concerns highlighted to me and, I am sure, to Members opposite by different interest groups. Amendment No. 6 is consequential on that new definition.
On Committee Stage, Deputy O’Sullivan raised a concern that the inclusion of the word “enduring” could have the effect of excluding disabilities that are not permanent. Deputy Stanton raised that point in the discussion on the previous amendment. I have given this matter some thought and while I accept that the answer is not clear-cut, it is much better, in my view, to retain this word than to delete it. My advice is that if we remove the word “enduring”, temporary or transient conditions would be included. That is not the intention of any Member in this context. It is not the intention of this legislation to allow for temporary or transient conditions; it is designed to assist children who will be at a significant disadvantage if they do not receive certain inputs to meet their needs. If we remove the word, ultimately it could be counter-productive.
I said previously that there is always the pressure point in that we must operate within limited resources. With the resources at our disposal, we must ensure that we target those who are genuinely in need and meet the needs of those whose needs we set out to meet in this legislation. A concern of Members would be whether in doing that in the way I am doing it we would perhaps unintentionally exclude children with special needs, for example, a child with attention deficit disorder. The answer to that is “no”. The word “enduring” does not mean the same as the word “permanent”. It means something which lasts or continues in existence. ADD clearly falls into this category and, therefore, would and should be recognised.
On balance, it is better to retain the word “enduring” than to delete it. For that reason, I do not propose to accept amendment No. 8. I want to ensure that the specific resources available to provide for children with special needs are used for that purpose rather than to provide for the needs of people with a transient condition.
The removal of the Minister’s powers to prescribe other conditions, as outlined originally and as inserted by way of an amendment on Committee Stage means that amendments Nos. 7 and 9 are no longer necessary.
Mr. Stanton: I accept what the Minister said. However, one of the major problems an increasing number of children face in school is depression. I am not sure whether this definition would encompass that condition. One can have periods of depression. I am not sure whether the condition could be said to be enduring. Some people can suffer from depression once in their lives and never again. People can suffer from different forms and levels of depression. Perhaps the Minister’s definition of “special educational needs”, which refers to a person leaning differently, would cover that condition. There are also other conditions from which people can suffer periodically and which may not be enduring. The latter part of the Minister’s definition states “or any other condition which results in a person learning differently from a person without that condition”. If that incorporates the condition such as the one I described, I would be happy with the Minister’s amendment.
Ms O’Sullivan: I welcome the taking on board by the Minister of our concerns regarding the definition. We can now accept that dyslexia is categorically included in the definition. That was one of the major concerns raised on Committee Stage on behalf of a number of people who addressed us, and we all received many letters about that issue. I am satisfied that this definition includes dyslexia.
In regard to my amendment No. 8 which proposes the deletion of the word “enduring”, the Psychological Society of Ireland’s submission states that the notion of an enduring impairment implies that improvement is not likely to occur, which runs counter to psychological and educational principles and experience. I take it the society is saying that, in some situations, a person with a learning disability who has the correct treatment or correct educational assistance can overcome it and that it therefore may not continue to endure. That was the society’s concern about the word “enduring”— that it has negative implications. I do not know if there is any other way of taking on board that valid point or whether it could be included in some form in the definition to imply that while a condition may endure for a while, it need not necessarily endure indefinitely if it is correct addressed. That was from where I was coming when I tabled that amendment. I do not know if when the Bill goes to the Seanad that point could be taken on board because the Psychological Society of Ireland is expert in these areas and has a direct interest in this legislation.
Ms Enright: Following on from the previous point, I have a concern about the retention of the word “enduring”. It could leave the Bill open to question not by parents but by service providers who might want to test it and they could base their case on the inclusion of the word “enduring”. The prime time to assist many of these children is from the age of three to seven, but when a child is aged three or four and assessments are only beginning to be made, it is not easy at that early stage of a child’s development to establish if a condition is enduring. I would not like a situation to develop where, because of that, a child was found not to be eligible for extra assistance or special needs assistance. A situation could also arise where a person might be involved in a car accident, a sporting accident or whatever and could encounter difficulties for one, two or three years before eventually recovering. However, this would not diminish the fact that he or she would require assistance for the period in question. I accept the Minister is trying to ensure those who need assistance most will receive it. However, it does not necessarily follow that there are certain people who have a lesser need.
I welcome the inclusion of dyslexia in the definition. Its absence from the original definition was identified as a major stumbling block. Like Deputy O’Sullivan, I am satisfied it will now be covered.
Mr. Crowe: When this matter arose on Committee Stage, the Minister charged us with arriving at a different wording. Unfortunately, we have not been able to do so. However, he accepted there is a certain vagueness around this word and that problems may be created in the future.
The Minister referred to transient conditions. Will he provide some examples of such conditions? Has he identified particular illnesses or difficulties students might have which would be identified as transient conditions?
Mr. N. Dempsey: As regards Deputy Crowe’s point, if one accepts what Deputy Stanton said earlier one could say that depression might be transient. That is one of the difficulties with this matter. I presume a physical illness people might contract which might keep them away from school or their place of learning for a particular period would be described as a transient condition. In the past, TB and other illnesses affected people’s learning over a period.
I understand the difficulties Deputies have encountered in respect of this matter. I have wrestled with it and, in response to Deputy O’Sullivan’s concerns, I will wrestle with it even further before the Bill is taken in the Seanad. We have substituted the term “enduring” for that of “permanent”. On Committee Stage, there was a discussion regarding whether we should leave either or both words out and simply refer to a physical, sensory, mental health or learning disability or any other condition which results in a person learning differently to others.
I will be honest and state that I am not absolutely definite we are doing the right thing. In the event that this matter ever arises in the courts, the point Deputy O’Sullivan raised bears repeating for the record, namely, it is certainly not the intention of the Oireachtas that the use of the term “enduring” or any other term would be negative in nature. As Deputy Enright stated, if it could be stated that a particular condition might disappear after three or four years, it would not be our intention that someone carrying out an assessment for the purposes of this legislation would be in a position to say that an individual’s condition was not enduring and that he or she would not be given access to certain facilities or be treated as a person with special educational needs.
I prefer to leave matters as they stand at present. However, if somebody can arrive at a better wording between now and the taking of the Bill in the Seanad, I would be prepared to reconsider the position.
This amendment was tabled because of our concerns regarding the fact that a definition of psychologist is not provided. The National Educational Psychological Service, which is doing a great job and adheres to particular standards, used to be involved in this area. As I understand it, there is still no statutory definition of psychologist and anybody can erect a sign and call themselves a psychologist. I accept it is somewhat extreme but I would be happy if psychologists were either approved or employed by NEPS. This would at least put some sort of controls in place and people would know they are dealing with someone who is an educational psychologist and who has experience and qualifications in the area of education. This would mean psychologists would have to be approved by NEPS before they could work in this area, which would regulate matters. The Minister stated on Committee Stage he would give further consideration to this matter and I look forward to hearing his views.
Ms Enright: Parents are employing private psychologists — I refer here to individuals outside those whose services are paid for by the Department of Education and Science or NEPS — and their reports are sometimes not accepted by NEPS or the Department as a basis for providing services or whatever to their children. If the amendment was accepted, this would not happen because psychologists would either be employed or approved by NEPS. If a psychologist was deemed suitable by NEPS and hired or contracted on a private basis by a parent, his or her assessment could be accepted.
Mr. N. Dempsey: I propose, in amendment No. 72, to include a requirement in section 5 that a person carrying out an assessment will not only have the expertise but also the qualifications which the council or the health boards consider appropriate to carry out an assessment. This will meet the concerns expressed by the Deputies. It is more appropriate that the council or the health boards make the decision in this instance, particularly as they will have the statutory duty to have assessments carried out.
I have considered amendment No. 73 and I am happy the phrasing currently contained in section 5(1) is correct because it is an either/or situation. If we substitute the word “shall” for that of “may”, it would mean there would be no discretion and everyone listed in the section would have to be included.
The effect of amendments Nos. 74 and 75 would be to require a psychologist to form part of every assessment team. That might not be necessary in every case. Therefore, I do not want to accept the amendments. For example, a student who is deaf will have special educational needs and will require equipment and other assistance in order to enjoy the benefits of education. However, a student’s deafness might not give rise to any psychological issues and, therefore, the presence of a psychologist may be unnecessary.
Given that the council will have the expertise in these particular assessments, it is better to leave it to it as to who should form part of the assessment team rather than including a statutory obligation which might be unnecessary.
Mr. Stanton: I accept that and agree the Minister’s amendment covers much of our requirements. One of our concerns relates to amendment No. 74. Section 5(1)(c) gives the impression that the only person who would carry out an assessment would be a teacher from the school nominated by a principal. We feel it is necessary to have a psychologist involved to ensure an outsider’s view for the reason that all special needs assessments have a psychological impact on children.
I accept the Minister’s point that it would be all right to have the council and the health board adjudicate on the matter. However, perhaps he would re-examine the situation where the teacher from the school might be the only person to carry out an assessment. The section provides that the council could decide on that. All special educational needs assessments have a psychological impact. Therefore, an educational psychologist is eminently qualified to oversee the process or to be involved at some level. That is the reason we tabled the amendment.
Mr. N. Dempsey: I will have another look at the section, which says “one or more”. I accept the Deputy’s point that the “one” could be just the principal or a teacher. I will have another look at the section to see if it needs amendment. The other side of it is that the parents will have the right to appeal and this would probably cover the difficulty.
The purpose of this amendment is to remove the definition of “support services” as defined in the Education Act. This issue arose on Committee Stage. The reason I want to remove it is that I am concerned that using that definition will confine the meaning to those services for which the Minister for Education and Science is responsible for ensuring are provided. In the context of this Bill, the support services that need to be provided may range wider than those the Minister would normally provide. We are talking in terms of services provided by health boards, other education and health service providers and others. By removing the definition, the word “services” will have the widest possible meaning.
On Committee Stage, Deputy O’Sullivan and other Deputies spoke about defining services. There was merit in the arguments put forward, but this amendment widens the scope so that services are not defined but cover any service a child needs. It puts the child and his or her needs at the centre of the legislation rather than sticking to legalistic definitions.
Ms Enright: I accept this amendment leads to a widening of the term “services” rather than a limitation. In the relevant section of the Education Act the term “services” is extremely defined. I realise it is not just the Department of Education and Science which will have to provide what is required in the section.
We have already, to some extent, referred to this amendment in the Long Title of the Bill in which the Minister has incorporated some of the concepts of this amendment, which I welcome. Not all are included but I suppose it is better to get half a loaf than no bread. I will, therefore, withdraw the amendment.
I ask for support on this amendment which I think is important. It concerns accountability and the provision of a progress report. It is important that the Minister for Education and Science delivers to the Houses of the Oireachtas an annual report of services for children with disabilities. The Department must ask itself serious questions. We ask teachers to produce a summer and Christmas report and to hold a parent-teacher meeting. Therefore, on three occasions during the year, the professional teacher provides reports to parents. It is not too much then to ask the Minister to be accountable to the Oireachtas.
It is also important that we are able to assess the policies, principles and progress of the implementation of the Bill. Some 7,000 children are on waiting lists for help. If this amendment were made, we would be able to see a year later how many of those had received help or back-up services, how many are getting on well within the system and how many were still in need of the service.
This amendment is important because it is concerned with accountability. We cannot ask other people to be accountable and provide a public service if the Minister and Members of the Oireachtas are not prepared to do the same. I urge other Deputies to support this amendment.
Mr. Crowe: This amendment is concerned with annual reporting. The Minister made it clear that he shares our impatience with the target of five years for the implementation of the Bill. Both he and the Opposition would like to see it implemented sooner. Now that we have a timeframe, it is important that we adhere to it. It would be useful in fulfilling the timetable of implementation if the Department furnished the House with a report of the work done in implementing the provisions of the Bill on a year by year basis.
The need for an annual report is an issue that arose from discussions with many of the groups involved at the beginning of this debate. People have significant expectations of this legislation, especially those with young families and groups dealing with disabilities. The issue concerns a monitoring system, resources and a plan for the implementation of the legislation. The amendment is sensible and I am interested in hearing the Minister’s views on it.
Ms O’Sullivan: I support this amendment. Implementing it should not be too onerous on the Minister. Under section 34, the council must prepare a report and, under section 37, the appeals board must also prepare one whenever required to do so by the Minister. It is a good idea to combine those and compile an overall report. Presumably the Minister’s part of that would relate to the policy area whereas the implementation area would be contained in the report of the council. I support what has been said.
Mr. N. Dempsey: Deputy O’Sullivan mentioned that section 34 provides that reports must be made. Section 23 also provides for a roadmap to the implementation of this Bill. Following consultations with the relevant interest groups, the council must prepare an implementation report outlining the steps that must be taken in order to implement the Bill’s provisions. In addition, section 24 requires the council to prepare and submit to me annual reports on its activities which must be laid before the Houses of the Oireachtas. I believe that meets the thrust of amendment No. 17 tabled by Deputies Crowe and Finian McGrath. The amendment does not add anything to that. It is also provided that Members may invite the council before the committee at any stage to deal directly with the implementation of the Bill. Deputies also have the right to invite me to come in on an annual basis and hold me accountable in this House or at the committee for the implementation of the Bill. I have no difficulty with that. I believe, therefore, that what the Deputies are trying to achieve is already provided for in the Bill.
Mr. F. McGrath: I disagree with the Minister’s response. I also take issue with his remark concerning teachers and reports. There are thousands of teachers, particularly in primary schools, who are accountable and professional. This applies particularly to teachers in disadvantaged areas. They work with the Minister’s officials on excellent projects aimed at being accountable and professional, planning for their schools, participating in projects such as Breaking the Cycle. There is a strong public service ethos, even though that is often not reported in the national media and in some of the debates. There are people who want to be accountable and professional and who have a strong public service ethos. In the most disadvantaged schools there are examples of good practice and professionalism when working with parents. Most of us who work in disadvantaged areas know that one does not demand respect, one must earn it. Many local teachers and staff have a very strong relationship with families who live in poor communities and must live with drug abuse, violence and all sorts of anti-social problems. Such relationships should be rewarded. My point is that we are all in favour of accountability. Public servants are paid by the taxpayer and should be accountable. That is the ethos I want to present in amendment No. 17.
The purpose of this amendment is to provide for the full implementation of the Act and enforcement of its principles and policies within three years of its enactment on the signing of a commencement order by the Minister. That will mean that all provisions of the Act must be fully in place within three years, unlike other Acts, for example, the Youth Work Act 2001 which is languishing somewhere and is not being enforced. This legislation is important and many people will be depending on it. This amendment should, therefore, be accepted so that the Act will be implemented quickly and the excuse of lack of resources cannot be used, as has happened in the context of the Youth Work Act which was passed by the Government but regarding which nothing more has happened. That is my concern. That is why I would like to see this or a similar provision inserted in the Bill. Such a provision would ensure that no matter what Minister was in office — it might be not be as warm-hearted a Minister as the Minister opposite — the provisions of this Act will be enforced, driven by a legal requirement if that is possible.
Ms Enright: I support the amendment. The Youth Work Act is one example of an Act that is not enforced. There are others, for example, the Education (Welfare) Act 2000 which set up the National Educational Welfare Board. I accept the Minister’s point that the board is offering one figure in terms of the number of employees and he is offering another. However, if we provide for implementation and finalisation within a set period of time the staff would have to be there, whoever agreed on them, so that the full roll-out could happen. I would not like to see this Bill left in the same position as the others. It is important that a certain time limit is imposed and three years is reasonable. The Minister mentioned five at the launch of this Bill. The number of years could be negotiated so long as it is not too high. However, there must be a definite timeframe.
Ms O’Sullivan: I support this amendment. The Children Act is another Act where it is taking a long time to implement the various sections. It is important that there are deadlines and that these do not become meaningless Acts that are not implemented to make a difference to children’s lives.
Mr. Crowe: I support this. I have no problem with the Minister changing the timeframe to five years. However, there must be a target and it must be agreed. Otherwise I would be concerned that it would drift on and on. There must, therefore, be a timescale.
Mr. N. Dempsey: I agree that a timeframe is important. We have included a five-year timeframe in section 23 of this Bill. I ask Deputies on the other side of the House to accept that this timescale is realistic. There is only one thing worse than passing legislation here and not implementing it over a particular period of time and that is passing legislation with unrealistic targets. We have examined this in great detail, precisely because of the point the Deputies are making, to determine what would be a reasonable roll-out time for the Bill. We also went to the bother, before the Bill was put in place, of implementing the equivalent of some sections of the Bill in setting up the National Council for Special Education and employing special education needs organisers and so on. Some of the work provided for in the Bill is, therefore, already done. However, it is the considered opinion within the Department, which I share having gone into it in detail with the officials concerned, that it will take five years to implement. There is no point raising the expectation that this will be done within two or three years when we know that may not be possible.
I said on Committee Stage that I would aim to implement it within three or four years. However, when putting something like this into law one needs to be careful. I believe five years is reasonable. Progress could be made in a shorter timeframe than that but it must be remembered that the first year of this will be taken up in consultations involving the council, the Department, the voluntary groups, parents and so on to ensure it can be done and that there is an implementation plan.
Mr. F. McGrath: I often complain to the Minister about his policies in respect of children with disabilities, special needs assistants and resource teachers. In fairness to the Department of Education and Science, the process has already started. I know from direct experience that some schools have the services now. I do not think the three-year target is out of the Minister’s range, given that he has started the process and announced that 350 new jobs are coming on stream shortly. I have noticed in the last six or seven months that resources have been put in place in schools in some of the most disadvantaged areas in the country. I understand the Department’s cautious view but I think we can do it within three years now that the process has started.
Mr. N. Dempsey: I agree to accept three years as a target but I will leave the legislation as it is and retain the five-year target so we do not bring ourselves into disrepute. I hope we can do it as quickly as the Deputy says.
Ms Enright: I appreciate the Minister’s perspective on this matter. There is not much we can do if the Minister wishes to retain the five-year target. There is no point in pursuing the amendment. We all know where we will be in three years’ time but we do not know who will be sitting where after that. I would not like us to be here in three and a half years’ time to discuss a second education for persons with disabilities Bill because somebody thinks they have five years to deal with it. I will take the Minister at his word, which is that he intends to do everything possible to implement the policies and principles of the Bill within three years. We will keep our eye on it.
Deputy Gogarty argued on Committee Stage that referring to the education of children with disabilities alongside those without disabilities focuses more on the physical act of being present than on genuine participation in the education process. The Deputy’s view was echoed by other Members who contributed to the Committee Stage debate. His concerns have also been raised by a variety of interest groups. I have considered the matter carefully and taken on board the views of others. I have examined a number of precedents in other countries, including the Individuals with Disabilities Education Act in the United States.
The amendment I have proposed will provide for a simpler and clearer section 2. It states, “a child with special educational needs shall be educated with children who do not have such needs”. The critical emphasis is on participation rather than presence, which is in line with the thrust of what was said on Committee Stage. My amendment covers Deputy O’Sullivan’s proposal in amendment No. 22.
I have given further thought to the proposals in amendments Nos. 20 and 21, tabled by Deputies Enright and Stanton. Section 2 of the Bill represents a statement of principle and policy. It colours the exercise of other functions under the Bill, such as carrying out assessments, drawing up education plans and designating schools. It is clear that parents and special educational needs organisers play a critical role in identifying educational inputs, including the setting of a child’s education. The roles of parents and the proposed national council for special education are emphasised in the Bill. The inclusion of a further reference in this section would serve only to confuse what should be a relatively straightforward statement of policy which seeks to strike the right balance. The balance would be upset and the statement would be obscured by the introduction of other players in this section. We have tried to transmit our message, which is about inclusiveness and parental participation, by making amendments based on the discussion we had on Committee Stage. The Bill is the better for such changes.
Ms Enright: The purpose of the amendments proposed by Deputy Stanton and I was to impress on the Minister the need to ensure that parents and special educational needs organisers are involved and that a multidisciplinary approach is adopted. I take the Minister’s point that he wants to make a policy statement in this section. Can the Minister explain why the words, “in an integrated and inclusive environment”, have not been retained in his amendment? I cannot see how the Bill can be said to be improved by the removal of the words. Perhaps the Minister can give a reason for their exclusion that was not apparent when I read the Bill. We would all welcome the promotion of “in an integrated and inclusive environment”. The parents of many children with disabilities want them to be educated in such an environment, where possible. I wish to restate my concerns about section 2(b), which I outlined on Committee Stage. I am concerned about how the section will operate in practice. Who will make the judgment call about the effects, if any, of the school environment on other children? Principals and teachers will be placed in a difficult position.
Ms O’Sullivan: I welcome the new wording of section 2 which is an improvement on the original. We had quite a long debate on Committee Stage about the balance of rights between the child with special needs and the other children in the class. My amendment No. 22 attempts to strike such a balance, so the interests of the child in question and those of the other children will be catered for in the same statement. My amendment proposes that they be seen as of equal importance. I do not think the Minister has gone that far in his amendment but I would have liked him to do so. Deputy Gogarty also has concerns in that regard, although he is not here to express them today. I welcome the fact that amendment No. 19 constitutes an improvement on what was previously in place, but I share Deputy Enright’s concern that the phrase, “in an integrated and inclusive environment”, has been omitted. I wonder why the words have been removed from the section.
Mr. F. McGrath: I support amendments Nos. 21 and 22 because they are balanced and important. Most people will agree that parents, psychologists, special educational needs organisers and class teachers work together as a team, in the interests of children with special educational needs, to make the right decisions about the placement of such children. Such co-operation should be accepted as good practice. We have to accept that some children are disruptive and have a lack of social skills in some situations. We need to make decisions about such children. It is important to balance the rights of both sets of children in the classroom. We should face the reality that parents and teachers know the best and most progressive way forward. Amendment No. 21 recommends that, “the provision of education will take place, after consultation and with the agreement of the parents and with the special educational needs organiser in a way which is in the best interests of the student”. There is merit in such a suggestion. I accept the Minister has taken some of the views of Deputies on board but it is essential we get the balance right.
Mr. Stanton: This is an important section and it is important that we get it right. It was useful to include the words “integrated and inclusive” in the original section. Deputies were especially concerned on Committee Stage that the word “inclusive” be included. It is possible to educate children with other children in a way that is not inclusive. If they are in the same room, it is possible that they are sitting in a corner or at the back of the room. They may not be included. It is important that they be included. Maybe it is implied in what the Minister says when he uses the term “with children”. I agree with the Minister that it is far simpler to say that the child with special educational needs shall be educated “with children”. That does not necessarily mean however that the education will be inclusive. We might need to interpret “inclusive” as well. At the time when we changed the word “integrated” to “inclusive” I thought that was an improvement.
The decision to educate children with special needs along with other children is very important, and is one in which parents should be involved, and no doubt would be. I take the Minister’s point that it may upset matters if it is to be written in as we have proposed, but it is such a crucial decision for many parents of children with and without special needs that one must have consultation. If the Minister is saying elsewhere that consultation and involvement of parents are an integral part of the Bill, I am happy to accept that, provided it impacts positively on this section.
The second part of the Minister’s proposed amendment says that a child with special needs shall be educated with children who do not have such needs, unless the nature or degree of those needs of the child are such that to do so would be inconsistent with the effective provision of education for children with whom the child is to be educated. That means that the rights of the child with special needs are not equal to those of children without special needs, because one could turn that around. One could say that a child without special educational needs shall be educated with children who have such needs unless the level of need or nature of those children is such that it would be inconsistent with the effective provision of education for the children with whom the child is educated. In other words, if I have a child with special needs, or without special needs, how is one to distinguish between the rights of the two?
I can see the problem and the concerns. It is a tricky question. If one were to turn it around and say that children without special needs cannot be educated with children with special needs, that in effect is what the Minister is saying. We must treat all children equally. There may even be a constitutional difficulty here. I can see the concerns that parents might have. Deputy O’Sullivan’s amendment goes some way towards meeting that concern, and the Minister should consider the matter again, and perhaps tell us what advice he has been given, possibly from the Attorney General’s office. Is there a potential conflict involved?
Mr. N. Dempsey: Regarding the inclusive environment, the thrust of the debate we had on Committee Stage basically involved Deputy Gogarty, who was strongly supported by other Members, suggesting that inserting the phrase “a child with special educational needs should be educated in an integrated and inclusive environment” could mean that the child might merely sit in the classroom, but not necessarily be included in the educational process. Deputy O’Sullivan asked why we removed that element. We did so because we felt that is what people were looking for. Though it may cause some difficulty for people noting minor amendments on the hoof, I have no difficulty with the amendment including “a child with special educational needs shall be educated”, and adding in at that point “in an inclusive environment”. That would re-insert “in an inclusive environment”. It is not necessary, but if Members feel it adds to the Bill, I am happy to make the addition. In other words, my amendment No. 19 would read in part “A child with special educational needs shall be educated in an inclusive environment with children”, and so on.
Deputy Stanton also made a point regarding the balance of rights. This amendment says that a child with special educational needs “shall be” educated. That does not involve the word “may” or any other such word. It is an imperative that a child “shall be” educated. We are defining two reasons when a child might not be educated in the inclusive environment we talk about. The first relates to it being not in the best interests of the child. The second is causing some of the difficulty, referring as it does to the adverse effect on the provision of education for other children in the classroom, some of whom could have special needs as well. There is a balance of rights, and from our point of view the balance of rights of one child being able to affect the education of ten, 15 or 20 others does not involve a constitutional issue. Once we are making provision for the child with special needs elsewhere, the constitutional issue does not arise. Some of the Deputies are aware of the discussions at various teacher conferences and management conferences about the rights of the 98% of children who for one reason or another do not cause difficulties in schools.
The amendment we now have, as it stands, with the slight amendment made, meets the balances we have been discussing and ensures that children with special needs shall be educated in an inclusive environment, except in two specific cases: where it is not in the best interests of the child, or where it is not in the best educational interests of other children. As amended, that is a reasonable provision.
Mr. Stanton: I welcome the Minister’s proposed amendment to his amendment. adding the phrase “in an inclusive environment”. Regarding amendment No. 19(2)(b), I can see the difficulty, and from personal experience I understand it. Has the Minister considered how this might work in practice? Who will make the decision regarding the inconsistency? Will it be the school principal or the special needs organiser? What guidelines are there, or will be in place, to guide the decision makers?
In one school it might be quite acceptable to have a child with certain special needs in the classroom, while in another school nearby there might be different standards, levels and expectations, with different teachers and experiences. That latter school might have major difficulties in accepting such a child into the classroom. Do the rules kick in before the child arrives in the classroom? What happens if difficulties arise when such a child is in the classroom, and the principal apologises to the parents and explains that the child cannot attend the school any longer because a certain teacher is protesting, or the parents of another child in the school feel that its child’s needs are being adversely affected? Who makes the judgment, how is to be made and what criteria are involved? Are there appeal mechanisms? Is the judgment to be made before the child is in the classroom or when the child is there?
If a decision is taken and a child is removed from the classroom, what happens to the child in those circumstances? Will there be a mechanism to allow the child to return to the classroom following some form of appeal? Will the appeals board or the council be involved? These are real issues and I am not aware of a mechanism in the Bill to deal with such situations in practice. It is fine in theory but I do not see the practicalities laid down in the Bill. This could lead to litigation and major difficulties. Principals, in particular, need to be clear as to their role and responsibility. If a principal is to make this decision, he or she may be open to all forms of pressure and litigation and would need backup and support. With respect, it is not as simple as what the Minister might think it is. This is a very sensitive area for everybody concerned.
Ms O’Sullivan: Clearly this is an issue of balancing rights. In section 2 we are dealing with the general principles of inclusive education which I think is linked to how schools are designated in section 10. Perhaps when we come to deal with section 10, we will look at the practicalities of the issues raised by Deputy Stanton. Everyone is aware from the real world that some schools may try to avoid having children with special needs because obviously it will create some difficulties and may make it a little harder for the teachers and add to the provisions that the school has to make. I am well aware of this, particularly in the context of the present issue in Limerick of the entry of children to school. Section 10, however, states: “The Council may designate the school which a child with special educational needs is to attend”. The issue may be addressed further when we will deal with that section. At this point, I would still prefer to have the balance I have sought to achieve in amendment No. 22 inserted, but to some extent the Minister has met my concerns. Will he outline how he will deal with a school that would use the provisions of section 2 not to accept a child because letting the child into the school might affect the effective provision of education for children with whom the child is to be educated. This is what Members are concerned about.
Mr. N. Dempsey: I will answer the points generally. As Deputy O’Sullivan mentioned the designation of schools arises in section 10 and the procedures under section 29 of the Education Act are also available to deal with issues. In response to Deputy Stanton who raised a number of points on the decision-making process, it depends on the circumstances but generally speaking, the principal of the school in consultation with teachers and parents, and in some cases, in consultation with the special education needs organisers, will make the decision. The principal may make the initial decision to offer the child a place when he or she starts school. Obviously if difficulties arise for a child in the school, a wider group of people will be involved. At all stages, thanks to the cases that were put forward and amendments tabled, I do not think there is any circumstance in which a major decision on a child’s education can be made without an input from parents. The council will draw up guidelines on these matters. Even at this stage, the council is attempting to draw up some of the guidelines and to seek clarification on policy issues from the Department. In deciding whether a school should be designated, the principal will have a role. There will have to be procedures in place to ensure there will be adequate participation and consultation locally and if the issue cannot be handled locally, the provisions of section 29 of the Education Act will come into play. This should prevent the types of scenario the Deputy fears.
Under the weighted system that will be introduced, each school will have to give an undertaking that it will take special needs pupils. We will not provide resources and resource teachers for schools where a policy operates that they will not accept pupils with special needs. The combination of all three——
An Leas-Cheann Comhairle: There is an error in the numbering of amendments Nos. 23 and 24. Amendment No. 24 will now be amendment No. 23 and amendment No. 23 will now be amendment No. 24. Is that agreed? Agreed. Amendments Nos. 24 to 28, inclusive are alternatives. Amendments Nos. 29 to 31, inclusive, are related. Amendment No. 31 is an alternative to amendment No. 30. Amendments Nos. 23 to 31, inclusive, will be discussed together by agreement.
We go back to a topic we discussed earlier on decision making and parents. During Committee Stage debate, we discussed at length the necessity for the involvement of parents in decision making. That was emphasised again and again by all members. To try to meet those concerns I tabled a number of amendments on Committee Stage and I am proposing a number of amendments today. The effect of amendments Nos. 23 and 29 is to make it very clear that parents may request the principal of a school to take measures to meet the child’s needs, where they believe that their child is not benefiting from the ordinary school programme to the extent that a child without special needs would be expected to. If a principal refuses or fails to take that particular action, then the parents retain the right under section 4 to seek an assessment of their child by the council. That is designed to meet the concerns raised by the Deputies in amendments Nos. 24, 25 and 28.
In regard to amendment No. 26, section 18 of the Bill provides that the principal can delegate his or her functions to a teacher in the school. It also states that the special educational needs organiser attached to the school must give all reasonable advice and assistance to the principal and teachers. That provision meets the concerns raised by Deputy O’Sullivan’s amendment.
I am concerned about amendment No. 27 and do not want to accept it in that it could bring a level of uncertainty by referring to additional support without referring to the basis on which it is decided that support is needed. Obviously, all children can benefit from receiving additional resources, however, the purpose here is to address a situation where a child is not benefiting from a regular school programme to the extent expected. To equalise or remedy the situation, learning support measures should be applied. If they fail, an assessment and education plan should be prepared.
Amendment No. 30 simply reflects the change in terminology from educational disability to special educational needs. That meets the alternative amendment No. 31 tabled by Deputies Enright and Stanton.
Ms Enright: The reason Deputy Stanton and I tabled the amendment was our concern that in the Bill, as it stood, the principal was, in some way, being asked to adopt a wait and see approach and that it could have been a little slow. We again emphasised the idea of partnership and consultation among parents, special educational needs organisers and so on. I fully concede the Minister’s amendment No. 24 is better. I welcome the fact that parents can take the initiative rather than having to wait for the initiative to be taken by the principal.
I refer to what the Minister said about the weighted system and to the 350 new resource teachers who will be employed in September. What effect, if any, will that have on what is being done in the Bill? That is a concern. When reading through the Bill in preparation for today, it came to my mind that it seemed we were looking at the possibility of the 350 resource teachers. There is a concern among principals and teachers that they are being put in a position of perhaps making an assessment of a child’s need without having the requisite qualifications to do so. There is also a strong concern among parents that if their children are given resource hours, or hours with these new 350 teachers, without the assessment, they may not get what they really need.
A further concern has been expressed to me by parents and perhaps the Minister can address it. I am open to correction on this but if a child in, say, fourth, fifth or sixth class in primary school is not assessed — I know when the Bill kicks in this might change — and he or she comes under the weighted system, will there be problems for that child when he or she reaches second level because he or she has not been formally assessed? There is a fear that it will be virtually impossible for such children to get the extra resources or help they need at second level.
Ms O’Sullivan: My main concern about this section was that the parents’ opinion was left out and that the principal would decide that the child was not benefiting from the educational programme, but the Minister has taken that point on board in his amendment.
I still have concerns in regard to my amendment No. 27. The reason I proposed to insert the words “requires additional support or” is that a child might benefit to some extent from the educational programme but not to the extent he or she should. I suppose most children in school will benefit to some extent and that is why I thought that if we inserted the words “requires additional support or” before “is not benefiting from the educational programme”, we would include children who are benefiting a little but who need the support. That was the purpose of the amendment because the suggestion otherwise is that it is only children who are not benefiting from the school system who will need the extra support or the educational plan. That was my concern which I would like the Minister to address.
Mr. N. Dempsey: I think Deputy O’Sullivan and I are saying the same thing. We are both trying to address a situation where a child, who is not benefiting from the regular school programme to the extent expected, would be helped. The Deputy’s wording might cause a difficulty, but we are both saying the same thing. It addresses a situation where a child is not benefiting from the regular programme to the extent expected. People are then entitled to look for the extra resources, whether teachers or otherwise.
On Deputy Enright’s point about the assessment and so on, the weighted system will not override the provisions of this Bill and the rights of people to assessments. I assure Deputies that the weighted system, provided it is reasonably applied by schools, will make people, including the National Educational Psychological Service, the inspectors and so on, available to carry out assessments more quickly than at present. It will avoid the situation where the National Educational Psychological Service, in particular, and even the psychological services scheme are snowed under because every child who requires anything must be assessed. It will be a huge improvement but it will not mean that individuals cannot look for assessments. A parent will be able to look for an assessment and the child with special educational needs will be entitled to the individual educational plan about which we spoke. I assure Deputies that the weighted system will not replace what is in this Bill, which will become law.
Ms O’Sullivan: On a technical point, the word “do” has been left out of paragraph (a) of the Minister’s amendment No. 23. It should read “children who do not have special educational needs”. It is a typographical error.
An Leas-Cheann Comhairle: Amendments Nos. 32, 33, 78, 79, 112, 157 and 166 are related. Amendment No. 79 is an alternative to amendment No. 78. Amendments Nos. 32, 33, 78, 79, 112, 157 and 166 may be taken together by agreement. Is that agreed? Agreed.
Amendments Nos. 32 and 33 aim to ensure that schools will be proactive with regard to informing parents that children may have special educational needs. The intention is that at the end of a school year a report would be sent to parents, as happens now with end of year reports. That report would include a statement alerting parents to the possibility that there may be a special educational need. Schools should be alert to the possibility of special educational needs and if they were of the view that might be so, they should let parents know about it. The amendment seeks to overcome the possibility that a child with a special educational need of a minor nature, might be ignored in the classroom setting. I am not using the word “ignored” in any judgmental sense but for want of a better word. By inserting a requirement that principals and teachers must be alert to the possibility that there may be a special educational need, it means the school would be proactive so that the child would benefit as a result.
Amendment No. 33 would oblige teachers to inform the principal if they felt there was a problem with such a child in the school. I have come across a situation where a child had a hearing problem in the classroom and, although he was well able to compensate for it by lip-reading and in other ways, he was not achieving his potential. Nobody knew what was wrong and the child became frustrated. He did not realise the nature of the problem because that was how he had always experienced life outside the classroom. It was discovered almost by accident that he had a hearing problem and once that was corrected the child blossomed. The amendments are being moved to alert schools to the possibility that special educational needs, such as the one I outlined, may exist. If teachers are of the view that such needs should be supported, the school should be proactive in that regard. The Minister may have other suggestions to make. There are concerns about how parents might react to statements that their child has a special educational need. On balance, however, it is better to inform parents, which formalises the situation so that schools will no longer be able to delay dealing with such matters. The vast majority of school principals and their staff will do this anyway, but these amendments would deal with borderline cases where there may be a special need to which people have not been alerted. It may be a behavioural problem rather than a special needs one. In the case I outlined earlier, it was a behavioural problem that arose from a special needs issue. The amendments have been tabled in good faith for those reasons.
Mr. N. Dempsey: As I said on Committee Stage, a requirement such as the one in amendment No. 32, imposes an overly onerous burden on our schools. The thrust of what the Deputy is trying to achieve is met in the Bill as it stands. This is particularly the case in section 3 which imposes not just an obligation on a school, but a legal obligation on each school and its principal to take clearly defined steps where he or she forms the view that a person has special needs, or that a child is not benefiting from education to the extent that would be expected. That covers the thrust of this amendment and meets it requirements fully. It may not be all that helpful to be prescriptive in how this is done.
Amendment No. 33 is implicit in this section. If the Deputy examines my amendment, it will be clear that parents can inform the principal they believe their child may be experiencing difficulties. Section 18 permits a principal to delegate any functions conferred on him or her by the Bill to a teacher in the school. The laudable aims in the Deputies’ amendments are catered for legally and statutorily as the Bill is currently framed.
Deputy Crowe and Deputy Finian McGrath suggested that in making available the statement of the assessment’s findings to other parties, the council or health board should inform the parents to whom this information is being given. I agree with that and think it will improve the transparency of the system. My amendment No. 78 attempts to accommodate Deputy’s Crowe amendment on this matter.
Deputies Enright, Stanton and O’Sullivan have suggested that where an education plan is to be amended following a transfer between schools, parents should be consulted before any amendment is made. I believe, as the Deputies do, that this would promote a greater involvement of parents in the decision making process affecting their children. I wholeheartedly support this type of amendment. Under amendment No. 112, which I propose, the principals of the respective schools will identify if amendments are necessary. The principal of the new school will inform parents of the proposed amendments and the parents will then have a right to require the new principal, if they so desire, to consult the special educational needs officer. That makes the system much more transparent and, I hope it will meet the concerns of Deputies.
On Committee Stage, it was suggested that some of the council’s functions should be widened in the areas of information advice and consultation, to include the training colleges, the NCCA, school management bodies and the teaching council. I am responding positively to those amendments. Amendment No. 157 confers on the council a function to disseminate information on best practice to any person or body that it considers appropriate. That should meet some of Deputy Stanton’s concerns about raising awareness in schools.
On Committee Stage, Deputy Crowe made the point that the council’s duty to advise on the entitlements of children with special needs should be extended to include their parents. Amendment No. 166 does that.
Ms Enright: I accept the latter amendments to which the Minister has referred. I realise that amendment No. 33 is catered for later on, but I am concerned about amendment No. 32. We cannot frame a Bill to deal with every individual situation but I have been approached by parents with children who have different levels of special educational needs, including dyslexia. The reports their children receive at the end of the school year include comments from teachers, such as “must try harder” or “should pay more attention”, whereas that is not the issue. The reason they are not doing better is because they have a need that is not being catered for. Perhaps this is not the best way of going about it. I do not know if it is mandatory for schools to issue reports but most of them do. I have raised concerns about the training of teachers to deal with special needs many times but there must be a way both the teacher and the parents can be made aware of the possibility of a child having a special educational need. A mother might know her child has dyslexia and the principal might have the assessment but the teachers are closed off from the idea and are still writing negative comments in the child’s report. If a need has been identified there should be a section in the report to show that. There are assessments and discussions with the parents but there should also be an annual record to show any possible need so the parents can be notified and kept informed of progress.
Mr. N. Dempsey: We are not at odds. There is a statutory obligation under section 3(1) that where the principal of a school who is of the opinion that a student is not benefiting from the education programme provided in the school to children who do not have special educational needs to the extent that would be expected of the student, he or she shall take such measures as are practicable to meet the educational needs of the student and that must be done in consultation with the parents. I take the Deputy’s point about raising awareness of this and that is why the later amendments deal with the NCEA and others. The full package of amendments meets the concerns expressed.
We spent a long time discussing time limits on Committee Stage and a number of Deputies suggested reducing the three month timeframe in which to complete an assessment and I undertook to review all of the time limits within the Bill. Having looked at it and having taken advice, an outer limit of less than three-months is unrealistic as a target to set for all assessments. For that reason I will not accept amendment No. 35.
This should be viewed in the context of the weighted system that will be introduced and the automatic response being beefed up. Children will no longer be left in school without some assistance. I accept the concerns that we should not allow things to drift and that assessments should be carried out as quickly as possible. For that reason I proposed the amendment which will require an assessment to begin within one month and to be completed as soon as practicable after that and no later than three months. We are giving a timetable as to when it should start and finish. That will not cut down on the overall time it may take to complete an assessment in all cases but it should help to focus minds and to get the ball rolling so the assessment will also be finished early.
The amendment also provides that the carrying out of an assessment includes the preparation of a statement of findings as a result of that assessment. The statement must be prepared within the three month period and I hope that addresses the concern that significant time can be lost through delays in drawing up the statement of findings.
This amendment addresses the problem some people foresaw of an assessment being done and then it taking another three months for it to be made available. I have tried to condense the timeframe as much as possible so that everything is complete within the three months and the assessment is not delayed any longer than one month.
Mr. Stanton: I am happy with that provided the principals are given the resources to carry this out. They would be happy to be in a position to do what the Minister intends here but they must have the resources.
This also depends on when the principal reaches an opinion. If he decides not to reach an opinion for six months, nothing will happen for six months. That is the only flaw in the Minister’s thinking but I am sure almost every principal will reach an opinion as quickly as possible.
Ms O’Sullivan: I was reading an article in the INTO magazine on this Bill. It asked what the main prerequisites would be for effective delivery of provisions at school level to ensure the implementation of the Education for Persons with Disabilities Bill. In response it outlines those aspects Deputy Stanton mention — staffing, planning time, resource provision, professional development, appropriate guidelines and ensuring proper co-ordination between the various service providers. Clearly, the body representing teachers is concerned that it gets the resources to meet the time limits in the legislation. Will the Minister give an assurance that the resources will be available?
Mr. N. Dempsey: I assure the Deputy that the INTO, being the good trade union it is and knowing how well it looks after its members, will not be slow about looking for those resources. We have already done some preliminary work to examine the resource implications, quantify them and include them in the Estimates process to ensure we can implement the Bill quickly and offer as much assistance as we can to the schools.
Mr. Crowe: I raised the question of the timescale on Committee Stage. Three months is an entire school term and the assessment could take weeks or even months. I am concerned it will drift and drift. I accept that the Minister is introducing new measures but there is a concern about delays and that is why I tabled an amendment on Committee Stage. There is a need for compromise on this area. Many of the parents who have contacted me are worried the assessment will be allowed to drift and I do not know if the Minister’s amendment will address their concerns. They are worried about the length of time involved before a child is assessed.
Parents might decide to have an assessment carried out privately. A child might be in hospital or somehow undergo a professional assessment of his or her educational needs. If such an assessment is carried out, is there a need for a second assessment in accordance with section 4(3)? This amendment obviates the need for a second assessment in accordance with subsection (3) to be produced by parents, a school or whomever. The assessment is already there. Let us suppose that a child was ill and had been in hospital, where medical practitioners had provided a written assessment of his or her situation. Surely there would be no need for a second one, and the first could be accepted by the educational authorities, provided that it had been carried out by a qualified person, as the amendment stipulates.
Mr. N. Dempsey: On Committee Stage I essentially expressed the view that, while each assessment must be tailored to the child, it must still be carried out in accordance with the guidelines issued by the council. The effect of the amendment, if accepted, would be to allow assessments not subject to those guidelines to be used in, or form the basis of, an education plan. Throughout the discussion, we have all talked about trying to ensure that assessments are carried out by properly qualified people and professionals with proper, recognised qualifications. Accepting this amendment would undermine the consistent, best practice models which the Bill will guarantee and which we all want to try to achieve. For that reason, I do not propose to accept this amendment. There should be consistency in the assessments, and they should all be done in accordance with the guidelines issued.
Mr. Stanton: The situation could arise where the top consultant in the country provides an assessment regarding a child’s special educational need in one of the country’s top hospitals. Is the Minister saying that such an assessment should be set aside and should not be taken into account at all, with a second assessment produced by someone not nearly as qualified? Why put a child and his or her family through a second process of assessment when one might already be available from an eminently qualified hospital psychiatrist, psychologist or whomever? Can the Minister not consider a situation where those assessments could be taken into account, thus telescoping the process? Perhaps the council could put guidelines in place so that such assessments could be taken into account and accepted so as not to put families through the trauma, trouble, expense and whatever else of having assessments carried out.
The Minister is always talking about the limited resources available to his Department. Why go to the expense of having a second assessment carried out when there may be a first one carried out by an eminently qualified person available that might be used and accepted? Perhaps the Minister might go away and look at this suggestion. In the past I have witnessed situations where people tried to overrule the highly qualified though they were not anything near as qualified themselves. It gives rise to a conflict. The Minister might be able to save everyone time and trouble, and his Department expense, if he considered this amendment. He need not accept it now, since he has probably given it no thought hitherto, but he might consider it for the Seanad, perhaps consulting others on it first. It is a reasonable suggestion, and I am surprised he has uncharacteristically shot it down straight away.
Mr. N. Dempsey: We may be talking at cross purposes. As long as an assessment is carried out in accordance with the guidelines issued by the council, it can be used and will be accepted by it. The Deputy’s amendment is not necessary to ensure that. However, we must guard against the current practice whereby people get private assessments done. People are conducting assessments with no reference at all to the guidelines we have in place under our circular recommendations. Unfortunately, that causes grief to parents if someone recommends 25 or 40 hours of one-to-one tuition and NEPS, applying the guidelines, decides that it should be 15 hours. The amendment is not necessary to achieve what the Deputy seeks. If the assessments are carried out in accordance with the guidelines, they will be acceptable.
Acting Chairman: Amendment No. 39, in the name of Deputy Crowe, arises from committee proceedings. Amendments Nos. 39 and 43 are cognate. Amendment No. 44 is related. Amendments Nos. 39, 43 and 44 may be taken together, by agreement. Is that agreed? Agreed.
Like many of the other Deputies, I attended a teachers’ conference over Easter. As usual, one takes advantage of such things and talks to local people. I met several teachers from the midlands, including young teachers who had just entered the profession. I asked their views on the job of principal and was surprised that the consensus seemed to be that they would simply not take on the job of principal because of the incredible workload. We mentioned before that teachers do one job teaching children or those in their care. They may have other responsibilities, but the primary one is teaching. However, principals must not only be teachers, as 75% continue to be; they must also function as school administrators, receptionists, chief organisers, accountants, diplomats, and even politicians in some cases. Many of them are without secretarial support to deal with the stream of paperwork. Administration always seems to be on the increase.
It is perhaps little wonder that the Irish Primary Principals Network calculated last year that for 36 principal posts there were no applicants when they were initially advertised. According to the report of the Hay group, it is the most overloaded role in the education system. I accept that the principal is in charge and that the buck must stop at his or her desk. I ask the Minister to accept some, if not all, of these amendments to allow some of the burden of this legislation to be moved elsewhere. Opposing this on Committee Stage, the Minister argued that one of the valid criticisms he had to make of principals was that they did not delegate enough. I ask him to accept this amendment and allow them to delegate some responsibility to the special needs organiser. Many of the principals to whom I have talked view this legislation with what approaches to fear. They know they will not be able to live with it practically, and we already have indications that there will be difficulties. They do not want the blame for not delivering on this legislation.
Ms Enright: I support the broad thrust of what Deputy Crowe has said. I know the principal should cause an appropriate education plan to be prepared for the student. I presume the principal will not have to sit down and do it himself or herself and that it will be the teacher of the child in question who does it. At the same time, I support what has been said regarding the workload on principals, particularly teaching principals. This Bill will increase that further. In some ways, there is no way around it, but the special needs organisers also have a role. Starting afresh, they might be the people best placed to take some of the burden currently on principals.
If the Minister is not going to accept the amendments I would ask him to at least consider the generality of what has been said in their regard. Perhaps he could say how he sees the role of principal changing under this Act and whether he feels there will be difficulties as regards the time and the workload involved if the principal has to oversee all of this as well, and how he believes that will interact with the special needs organiser.
Mr. N. Dempsey: This was discussed at length on Committee Stage. What we have to do is balance the rights, duties, responsibilities and so on within the Bill. I accept there will be some increased workload as regards what principals have to do as a result of this Bill. It is entirely appropriate, however, that the responsibility of a school-based education plan rests with the principal rather than someone who is external to the school as the special education needs organiser would be. I accepted many of the points made by Deputies and lobbies as well to each one of us on Committee Stage to try to ease that burden somewhat and better reflect the appropriate balance of duties at a particular time. The Bill now reiterates the right of principals to delegate their functions to members of staff, which is extremely important as well. Principals will also have the right to attain the assistance of the SENOs in carrying out their duties if they feel that is required. That should be of some help to them as well. In addition, where a principal considers that the assessment of a child believed to have special needs is not practicable, or that an education plan prepared by the school will not meet the child’s needs, he or she can then request the council to arrange an assessment or plan. I therefore do not propose to accept these particular amendments.
We have gone as far as we can. I said, only half-jokingly, on Committee Stage, that we are talking about professional people who are next in line to the parents at a school. They are the best people to know and be able to assess the child in these kind of circumstances. If matters become too complicated they have a backup. For that reason, it is important in so far as we possibly can, to deal with special educational needs within the school itself with the backups. For that reason I do not intend to accept the amendments.
Mr. F. McGrath: I want to put on record my views about the incredible workload of many principals in the education system, particularly over the last five years, when it comes to the administration of the school. Many principals are also involved in teaching classes as well as trying to run schools. I have to declare an interest, as a former teaching principal in a disadvantaged school. I know from the reality on the ground that the workload has increased massively. This has to be taken on board. Of course, part of leadership and decision making is the responsibility of delegation. I take that point on board that people in posts within a school must carry out their duties and share the responsibility. That is a reality that has to be implemented as well in many areas. However, it is important we understand the full picture. I have been talking to a group of teachers over the past few weeks, particularly after the INTO conference in Kerry. It has emerged that many quality teachers are not seeking promotion to principal. This saddens me because I have many colleagues within the profession. Deputy Carey worked in teaching as well for many years in Finglas. It is important to have people in teaching who really enjoy the work they do. However, it must be appreciated that matters have changed dramatically within the profession and that there are all sorts of plans and programmes, with the buck stopping at the principal. We must understand that the workload at the moment is horrendous.
Acting Chairman: Amendment No. 40 is in the name of Deputy O’Sullivan. It arises out of committee proceedings. Amendments Nos. 41 to 42, inclusive, and amendment No. 111 are related. They can be taken together. Is that agreed? Agreed.
These amendments are about involving the parents more. My wording for amendment No. 40 is that the parents are “involved in the preparation of the plan in a spirit of partnership”. The intention is to ensure that the parents are fully involved in the preparation of the plan for their child. I note that the Minister has met us some of the way in amendment No. 41, which talks about the parents’ involvement in the preparation. That is to be welcomed. In that group of amendments, there is a further one in the name of Deputies Enright and Stanton, which is quite important. I believe it is amendment No. 47. The Deputies will give their own views on it. However, this might be an opportune time to discuss it since I am moving my own amendment. I fully support that amendment. It takes into consideration the case where parents want a plan prior to enrolment. That is an important amendment.
Mr. F. McGrath: I strongly support amendment No. 40. The key words there are “spirit of partnership”. It is essential if services are planned in particular for a child with disability, that the parents and the teachers work closely together. It has to be done in partnership. There have been examples of good practice in the education system, as regards psychologists, teachers and parents working as a team and deciding which way the child should go, whether into special education, mainstream or wherever. Such decisions are made in a true sense of partnership. There have also been examples of bad practice. As a Deputy I have received many complaints from parents who were treated badly. Their children were not allowed to come to the school and no effort was made to facilitate the family of the child with disability. If we are serious about the educational process and services we should support Deputy O’Sullivan’s amendment.
Ms Enright: I agree with amendment No. 40, as tabled by Deputy O’Sullivan. She said what needs to be said on the amendment. As regards amendment No. 47, this is particularly important. The Minister has talked about transition from primary to post-primary level. However, another issue must be grappled with in this country, namely, the transition from pre-primary level, in whatever guise it will eventually emerge, whether as pre-school, Montessori or whatever. If a child is seen to have a special need of some sort, on enrolment provision should be made for an assessment to be carried out at that point so that when he or she is starting school everything is ready to kick into place. We are dealing with persons under the age of 18 in this Bill, but that should start immediately the need is identified. Unless an assessment can be carried out at the enrolment stage, valuable time will be lost. I would urge the Minister to accept that amendment.
Mr. N. Dempsey: Again on Committee Stage, concern was expressed by Deputies Enright, Stanton and O’Sullivan that references to consultation with parents might just mean liaising with them as a mere formality, as opposed to ensuring real involvement. I tried previously, as well as now, to address this particular view in a number of amendments we brought before the House. In the present context my amendment No. 41 places an obligation on the principal not just to consult with the parents, but to facilitate their involvement in the preparation of the education plans. For that reason it is not necessary to accept amendment No. 40. Its spirit and letter are included in my amendment No. 41. I said that I would look again at amendment No. 42 and I have done so but I still feel this is not an appropriate role for parents. The guidelines will be very technical and parents may not be best placed to appreciate their application in every case. However, they will have a close involvement in the education planning process, their views will be heard and they will have extensive rights of appeal if they are unhappy with the outcome. We have gone a long way in this Bill to ensure we are paying more than lip-service to them.
Acceptance of amendment No. 47 would impose a very wide-ranging and onerous duty on schools. If a principal considers that a child in his or her school may have special needs he or she can arrange to have an assessment and education plan prepared. Equally, parents have the right to approach the health board or the council to seek an assessment. Appeal arrangements exist in the event of a refusal to accede to a request for an assessment. Therefore, the amendment is not necessary and I do not propose to accept it.
Likewise amendment No. 111 is not necessary given that my amendment No. 112 which we have already considered, will ensure parents are consulted prior to the amendment of an education plan. The parents will also have the right to require the new principal to consult with the SENO. Amendment No. 112 covers amendment No. 111 and amendment No. 41 meets the requirements outlined in amendment No. 40. For those reasons the amendments before us are met by my amendments.
Ms O’Sullivan: I would like clarification of amendment No. 42 in the names of Deputies Enright and Stanton, rather than of my amendment No. 40. I accept the health boards can be approached, and that is part of the Bill, to undertake an assessment of a pre-school child but I am concerned about the point of entry. Can the Minister clarify whether at the point of entry the health board is the appropriate body to assess the child before he or she goes to school? If a child is in an Early Start programme is he or she considered to be enrolled in the school or under the health board? Many children in Early Start programmes are by definition in disadvantaged schools and it might arise that those children would be identified as having special needs. Can the Minister clarify whether the principal of the school or the health board would make the assessment in that case?
Mr. Stanton: Referring to amendment No. 42, the guidelines which the Minister says are so important can be set aside and the parents need not be consulted because they would not understand them as they will be very technical. There are parents who will understand but there are others who will find it difficult to follow them. Parents have a right to be informed of what is happening where their child is concerned, especially if guidelines are set aside. The authorities have a duty to explain this to them.
This also raises the issue of a proper advocacy service for parents. Perhaps the Minister will tell us what plans he has for this. It is not good enough to say the guidelines will be technical, parents will not understand them and therefore will not be told of them. There should be an advocacy service for parents so that when they are dealing with officialdom they can be accompanied by someone who can help make their case and explain what is going on, if they cannot follow the process. The Minister should look at this important issue.
Amendment No. 47 deals with the special needs child who goes to a primary school. What kind of interaction is possible before the child attends the school? I am aware of a town in which there are three or four primary schools and a six year old girl who uses a wheelchair cannot attend any of them because none is wheelchair accessible. She must attend a school three or four miles away and a special taxi service is laid on. She cannot go to school with her friends or neighbours but must travel some distance away. It should be possible that before the child enters the school, advance notice is given so that ramps, etc., can be put in place. This is not an isolated incident. If the Minister wishes I can tell him privately where these schools are and the name of the child.
This is why amendment No. 47 is so important. Prior to enrolment of a child in a school an assessment can be carried out so that school is ready to accept the child and the conditions are right, if ramps are required they are put in place and everything else is ready to enable the child to be accepted and included on arrival in the school. We have all said how important it is that children with special needs are educated in an inclusive way. There should be no delay in the child’s attendance at school while an assessment is conducted, the principal forms an opinion, or works take maybe six months to complete. The health board may be involved but we must create proper links to the schools, a possibility the Minister might examine.
Many children start school too early but junior infants is very often a pre-school play school environment and we all know how children learn through play. A child with special educational needs perhaps has more need for that than other children do. These are important issues which I am sure the Minister will take on board.
Mr. F. McGrath: I strongly support amendment No. 47 which states “Parents may, prior to enrolment of a child in a school as a student, request that an assessment be carried out in order to ascertain whether or not the child has any special educational needs.” The case to which Deputy Stanton referred is a disgrace. It is not acceptable that any child be blocked from going to a primary school because the facilities are not there. We also see the sad situation of other children with disabilities who must leave this jurisdiction to be educated, particularly visually-impaired teenagers. That is not acceptable. Recently, young adults with special educational needs have had to travel abroad for education. We must acknowledge this is not acceptable or good practice. Where special needs children have been successfully integrated into mainstream schools the parents and teachers usually work a year or two before the child starts and hold meetings and case conferences. The principal, the teachers and the parents spend 12 months planning for the enrolment of the child. That is the way forward. I do not accept that any educational establishment can use the excuse that it does not have the ramps or the facilities to take a student. This is a matter of the rights of children with disabilities. They must have rights as citizens of this State and those rights must be strongly protected.
Mr. N. Dempsey: I agree with the Deputy about the rights of children having to be protected. I would be interested in getting specific information on the school in regard to the child in a wheelchair. It will be interesting to see whether applications were made to the Department for the provision of ramps. It may have been, but it was my understanding of the summer works scheme and so on that works to improve access were a priority. Unfortunately, a minority of schools, which may not be the case here, use the excuse of not having ramps or whatever else to prevent a child with special needs going to the school. We would like to prevent that where possible.
We should all ensure parents are conscious of section 29 appeals. If such an appeal had come to the Department there would be a chance, all things being equal, that a decision would have been made to enrol the child. The onus would have been put on the Department to provide access. I would welcome details on that case.
A query was made about the link-up between pre-school and later schooling. We could get hung up on age, but the approach adopted in the Bill is that if a child is in a school, the responsibility for education planning lies with the principal and the council. If the child is in pre-school or out of school, the responsibility rests with the health board. The provision in section 9(2)(f) should meet the concerns of Deputies. It states: “The special education and related services to be provided to the child to enable the child to effectively make the transition from pre-school education to primary school education.” That has to be part of the education plan of a pre-school child. The concerns expressed are met in the Bill.
Ms Enright: Regarding amendment No. 47, Deputy Stanton gave a specific example of a primary schoolchild in a wheelchair to which the Minister responded. However, when a school makes an application under the summer works scheme, or other programmes, for special facilities, if the school has also made an application for more extensive works, the special application will not be dealt with because the other application is pending. I received a reply in answer to a parliamentary question on the matter yesterday. Schools are in the building programme for the past eight to ten years and special applications to cater for children in wheelchairs and so on are not being met. A bottleneck exists in the Department at present. I do not accept the Minister’s assurances that the problem identified by Deputy Stanton would be dealt with by the Bill.
Regarding amendment No. 42, I cannot envisage a situation where parents should not be made fully aware if guidelines are not being followed. In addition to the special needs organiser and the principal, parents rely on the guidelines. If they are not being adhered to, parents are as entitled to be informed as principals, special needs organisers or anybody else. Their children are being affected by guidelines not being followed. We intend to press both amendments.
Mr. Stanton: Amendment No. 47 states: “Parents may, prior to the enrolment of a child in a school”. However, not all children go to pre-school. The Minister gave an example of a child transferring from pre-school to primary school. I want him to address a possible loophole in the legislation in the case of a child who does not go to a pre-school. What happens then? Does a child have to enrol in a school without any initial assessment being carried out? If a school only starts to roll out services then, it might take three or four months to put a plan in place.
Ms O’Sullivan: I dealt with a principal last year that was willing to take a child with special needs. A number of modifications were required to be made to the school and she used up much of her summer holidays trying to get things in place for the child to start school in September. While the summer works programme will be adequate in some cases, it is not adequate in all cases. For one thing, applications must be made in good time. Sometimes a school may not be informed sufficiently in advance that a child with special needs is due to arrive. The Minister should ensure the building unit in his Department responds to cases of genuine need where work has to be carried out over the summer to facilitate a child. Principals who have decided to be proactive in this area generally have to put in a great deal of extra work in order to facilitate the arrival of a child, especially a child with physical disabilities. The Department needs to be able to respond to such situations.
Mr. N. Dempsey: Deputy Enright rightly raised the matter of guidelines which I neglected to mention. There is no indication in the Bill that parents will not be informed if guidelines are being left to one side. Parents will be so informed and will have the right to appeal because of the procedures we are putting in place. It is not a question of parents being ignored; they will continue to have rights in this regard.
If a child who is not in a pre-school is being dealt with by a health board, the health board will inform the school the child has special needs before the child commences school. It will then be a matter between the health board and the school. We cannot legislate for everything. I presume people will use common sense. Health boards have an obligation to put an education plan in place which will be passed on to schools. If, after a short period of time, the principal discovers the education plan is not sufficient for the child, he or she has the right to amend the plan. The same applies to students moving to second level.
I would be most surprised if the building unit was not responsive to the kind of needs to which Deputies referred. I would expect it to be responsive, but in deference to what the Deputy said, I will raise the matter again to ensure flexibility. We should not say, “if schools are good enough”, they should be doing it anyway. If schools are taking in pupils with special needs, we would ask them to be responsive. I am aware of a case regarding a major school building programme, part of which involved the provision of a lift that could not be done separately for logical reasons. However, the provision of ramps and the widening of doors are issues to which the building unit should be responsive.
Mr. F. McGrath: The Minister hit the nail on the head in regard to the building unit. We met some people with disabilities yesterday in Croke Park who are experts in school design and planning. They should have an input into the design of schools. Some 8% of the school-going population have disabilities.
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