The Education Act, 1998 requires the Boards of Management of each school to publish the policy of the school relating to participation by students with special educational needs, including students who are exceptionally able. The measures schools take in this regard are required to be stated in the school plan.
The 1998 Act 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 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.
The 2022 Act require a schools to include a further statement in the admission statement which is part of their admission policy setting out that the school shall co-operate with the NCSE (“the NCSE”) generally and in particular in relation to the provision and operation of a special class or classes when requested to do so and a further statement that the school shall co-operate with any Ministerial direction and any direction by the NCSE or Tusla.
Schools must establish and maintain an admission policy which provides for maximum accessibility to school, including to students with a disability or other special educational needs. There are additional functions for school boards relating to special educational needs. These functions require school boards to:
- co-operate generally with the NCSE, and in particular by providing and operating special classes when requested to do so by the NCSE;
- ensure that the admission policy of the school accommodates the admission of children with a disability or other special educational needs;
- comply with any direction given to make provision for children with special educational needs and any direction served by the NCSE to admit a particular child.
The 1998 Act gives the Minister for Education 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.
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 Education for Persons with Special Educational Needs Act 2004 provides for education of persons with special educational needs. The Act was passed in the context of the constitutional guarantee of primary education. A number of cases had been taken in relation to the failure of the state provide a sufficient standard of education for children with special educational needs.
The Education for Persons with Special Educational Needs Act 2004 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. A person has special educational needs if his or her 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 2004 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 school is to cooperate with the National Council for special education. Schools must ensure teachers are aware of special educational needs of students and the provision is made for identification of those with needs.
In line with the EPSEN Act, the Department of Education provides supports to children with a disability.
Individual Plans (Not Commenced)
If the 2004 Act becomes fully in force children with special educational needs would have a statutory entitlement to services under the 2004 Act, including assessment appeals, individual education plans, and the provisions of services in common with other children with special educational needs. This would also extend to exceptionally able students
There are to be individual educational plan to meet educational needs of a person with special needs. Where a school principal is of the view that the child is not benefiting the standard educational program, the principal must take steps to meet the special needs. If steps taken do not succeed the principal must consult parents and arrange for an assessment.
School-based assessments are to be completed within three months of when the principal forms the relevant opinion. If the assessment determines that the child has special needs, the principal must take steps to have an individual education plan prepared within one month. The parents, special educational needs organisers and other relevant persons are to be consulted.
In cases where the requirements or needs are relatively straightforward the school may draw up the plan. However, the principal may avail of the special educational needs organiser were required.
Where a child’s needs are more complex a formal planning process is to be undertaken by the National Council for Special Education. Where the plan is prepared by the Council a special educational needs organisers convenes a team of persons to include the child’s parent school principal and psychologist. There are provisions for mediation in relation to the process.
The Special Education Appeals Board (Not Commenced)
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.
Direct Special Class
The Education (Provision in Respect of Children with Special Educational Needs) Act 2022, allows the Minister to direct a school to work with the NCSE and put a special class in place. The Department of Education has published information for schools about providing for children with special education needs. The Act applies to recognised schools.
The 2022 Act defines ‘special class’ for the purposes of Education Act 1998 ‘special class’ means a class that has, with the approval of the Minister, been established by a school to provide an education exclusively for students with a category or categories of special educational needs specified by the Minister;.
The 2022 Act requires schools to co-operate generally with the NCSE, in particular by providing and operating special classes in accordance with any directions given to a patron or a board and in accordance with any direction served by the NCSE to admit a particular child.
NCSE Opinion & Direction
Where the NCSE is of the opinion that there is insufficient capacity in an area in relation to the provision of education for children with special educational needs, it shall prepare and submit a detailed report on the matter to the Minister; The NCSE report shall specify details on the existing provision in the area concerned, any relevant proposed or existing school building projects which may affect capacity, any schools in the area which the NCSE considers could meet additional demand, which schools the NCSE considers should be requested to make additional provision and such other matters as the NCSE considers appropriate.
On receipt of a report, and where the Minister is of the opinion that a relevant person (defined as a patron, board or any other person with a vested interest in the school premises) should make additional provision for children with special educational needs, the Minister may issue a notice in writing.
A notice shall set out the Ministers opinion that the relevant person should make additional provision for children with special educational needs and state the reason for his or her opinion, include a copy of the NCSE report, specify details of the measures to be taken by the relevant person, detail the resources to be provided to the school, detail any property arrangements to be made including any arrangements in relation to the school accommodation and direct the patron or board to share the notice with any other person to whom the ownership of the school premises is vested where that person is not known to the Minister.
Procedure Post Direction
A relevant person on whom a notice is served may make representations on any matter set out or specified in the notice within 14 days. After consideration of any representations received, and where the Minister remains of the opinion that a school should make additional provision for children with special educational needs, the Minister may serve a copy of a draft direction on a relevant person.
A relevant person on whom a copy of a draft direction is served may make representations in relation to the draft direction within 14 days. After consideration of any representations received in relation to the draft direction, and where the Minister remains of the opinion that a school should make additional provision for children with special educational needs, the Minister may serve a direction on a relevant person.
The direction shall set out the measures to be taken by the relevant person in relation to making additional provision for children with special educational needs, the period during which such measures shall be taken and any other relevant matters. The relevant person shall comply with such a direction.
All notices issued, representations received, draft directions and Ministerial directions shall be published on a website maintained by or on behalf of the Minister. The Minister shall review this provision within 3 years of its commencement and shall furnish a report to each House of the Oireachtas of his or her findings and conclusions resulting from that review.
The 2022 Act removes the provision for an appeal by a school board against a decision of the NCSE or Tusla (“the Agency”) to designate a school place for a child. The provision allowing a parent to appeal a decision of the NCSE or Tusla not to make a decision to designate a school place when requested by a parent to do so is also being removed.
Provision is made to allow a school board to make representations to the NCSE or Tusla where a school is directed to admit a child. Where the NCSE or Tusla, after consideration of any representations, remain of the opinion that the designation is necessary, they shall confirm the direction in writing to the board. A board shall comply with such a direction.