The Law on Special Needs Education:
There have been significant legal changes concerning special needs education.
Education for Persons with Special Educational Needs Act 2004
The Education for Persons with Special Educational Needs Act 2004 (pdf) provides for the education of children aged under 18 years with special educational needs. The Act focuses on children’s education but there are references to further and adult education. You are a person with special educational needs if your capacity to participate in and benefit from education is restricted due to an enduring physical, sensory, mental health or learning disability. While the Act is passed, all parts of it are not fully in effect.
The Act:
- Provides that people with special educational needs are educated in an inclusive environment, as far as possible
- Establishes that people with special educational needs have the same right to avail of and benefit from education as children who do not have those needs
- Provides for the greater involvement of parents in the education of their children and decision making
- Establishes the National Council for Special Education (NCSE) on a statutory basis
- Gives statutory functions to the Health Service Executive with regard to the education of people with special educational needs
- Establishes an independent appeals system – the Special Education Appeals Board – where decisions made about the education of people with special educational needs can be appealed
The Act sets out a range of services to be provided to people with special educational needs. These include assessments, education plans and other support services. Parents can seek assessments of a child’s educational needs. Assessments can be initiated by the Health Service Executive (HSE), by a school principal or by the National Council for Special Education. The system for personal education plans is not yet in place and its implementation is being co-ordinated by the NCSE.
The HSE is currently responsible for providing health services to pre-school children and may provide speech and language therapy services. The NCSE will be responsible for providing services to school-going children.
The Special Education Appeals Board and mediation
The 2004 Act provides for alternative methods of dispute resolution and encourages a move away from the courts as the forum for redress. The Special Education Appeals Board was established in 2006 for the resolution of disputes and the determination of appeals and the first Board members were appointed. The Board is not yet in operation.
When the Appeals Board comes into operation, the Act provides for the following:
- If the council refuses to arrange an assessment of a child or to prepare an education plan, the parents of the child or the school principal may appeal to the Appeals Board.
- The Appeals Board will have the power to direct the council to arrange the preparation of an assessment or of an education plan. In this case, the council must comply with the direction of the Appeals Board.
- The Appeals Board may dismiss the appeal of the parents or principal. The 2004 Act also provides for a process of mediation following the exhaustion of any rights of appeal under the legislation.
The Education Act 1998
The Education Act 1998 deals with education generally but emphasises the rights of children with disabilities and with other special educational needs. This Act is in effect and provides that every person concerned with the implementation of the legislation must have regard to a number of objectives including:
- To give practical effect to the constitutional rights of children including children who have a disability or who have other special educational needs, as they relate to education
- To provide that, as far as is practicable and having regard to the resources available, a level and quality of education appropriate to the needs and abilities of the people of the country
The Minister for Education and Skills is obliged, among other things, to ensure that everyone living in Ireland (including people with disabilities and people who have other special educational needs) has available support services and a level and quality of education appropriate to his/her needs and abilities.
Funding
The 1998 Act gives the Minister for Education and Skills certain functions in respect of funding, including the funding of support services for students with disabilities.
Schools must use their available resources to ensure that the educational needs of all students, including those with disabilities, are identified and provided for.
Boards of Management are required to use the State resources provided to the school to make reasonable provisions and accommodation for students with disabilities or other special education needs, including, where necessary, alteration of buildings and the provision of appropriate equipment.
The Act also provides that the criteria for funding of schools may allow for the payment of additional grants to schools, having regard to the level of educational disadvantage.
Support services
The 1998 Act defines support services as including, among other things:
- Assessment of students
- Guidance and counselling services
- Technical aids and equipment, including means of access to schools, adaptations to buildings to facilitate access and transport for students with special needs and their families
- Provision for students learning through Irish sign language or other sign language, including interpreting services
- Speech therapy services
- Provision for early childhood, primary, post-primary, adult or continuing education to students with special needs otherwise than in schools or centres for education
The Equal Status Acts 2000-2011
The Equal Status Act 2000-2011, outlaws discrimination in areas of life – mainly the provision of services. The Acts apply to educational services, including private schools and pre-school facilities.
There are certain specific provisions in the Acts in relation to education and some of these deal with people with disabilities or people who have special needs.
The Equal Status Acts outlaw direct and indirect discrimination on a number of grounds including gender, religion, disability, race and membership of the Traveller community.
Under the law, a school may not discriminate in relation to:
- The admission or the terms and conditions of admission of a student
- The access of a student to any course, facility or benefit provided
- Any other term or condition of participation in the school by the student
- The expulsion of a student or any other sanction
Discrimination on grounds of disability
The Equal Status Acts set out certain activities that do not constitute discrimination. The following relate to discrimination on the grounds of disability:
- Schools may make different arrangements for sport for children on the basis of age, gender or disability if these are reasonably necessary.
- Schools will not be considered to discriminate against a student with a disability if compliance with the provisions of the legislation would have a seriously detrimental effect on or make impossible the provision of services to other students.
- In certain circumstances, discrimination on the grounds of disability can occur if there is a failure to do all that is reasonable to accommodate the needs of a person with a disability. If a person with a disability cannot avail of a service without the provision of special treatment or facilities then the service provider may be required to provide such special arrangements if there is only a nominal cost involved.
- The Act includes a provision that clarifies that the nominal cost issue does not prejudice or dilute the various provisions in the Education Act 1998 in relation to children with a disability. It should be noted that these provisions all relate to the use of public funds. This means that private primary schools are only obliged to make special provision for children with disabilities if there is only a nominal cost involved.
