Education for Persons with Disabilities Bill 2003: Second Stage.

Minister for Education and Science (Mr. N. Dempsey):

I move: "That the Bill be now read a Second Time."

I will begin with a quotation:

Let us think of education as the means of developing our greatest abilities, because in each of us there is a private hope and dream which, fulfilled, can be translated into benefit for everyone and greater strength for our nation.

These words are as true today as when spoken by President John F. Kennedy over 40 years ago. While they apply to each of us, they have particular resonance for children with disabilities, who are at risk of being marginalised and suffering disadvantage because of their special educational needs. In the past, our education system focused primarily on the majority of children who do not have these needs. While resources were provided for those with disabilities, sufficient attention was not given to special education. Lack of resources, poor planning and a disconnection in the provision of services all combined to act to the detriment of the child with special educational needs.

That position has changed utterly since 1997. This Government has brought about a quantum leap in the level and method of response to children with special educational needs. In 1998, the Government embarked on a programme of funding designed to provide a more responsive environment to children with special needs and their parents. In October of that year, the Government decided that all primary school children with disabilities would have an automatic entitlement to a response to their needs. This led directly to the number of special resource teachers catering for children in ordinary schools increasing from 104 to more than 2,300. In the same time, the number of special needs assistants in the system has grown from less than 300 to almost 5,500 full and part-time positions.

In September 1999, the learning support teacher service was extended to every primary and post-primary school in the country. As a result, the number of learning support teachers in primary schools has grown from 1,242 in September 1997 to 1,531 today. Since then, pupil-teacher ratios in special schools and classes have been reduced to meet the recommendations of the special education review committee.

The nature and level of the educational response is based on the professionally assessed needs of each individual child. While my policy is to promote the inclusion of pupils with special needs in ordinary mainstream schools, those who have been assessed as having special educational needs have access to a variety of special support services. Those services range from special schools dedicated to particular disability groups, through special classes and units attached to ordinary schools, to placement on an inclusive basis in ordinary schools with special back-up supports. The response will normally take the form of resource teacher or special needs assistant support or both, depending on the level of need involved.

In some cases, the level of special need involved may be such as to require placement in a special class attached to a mainstream school. The number of special classes has grown from 350 in 1998 to more than 500 currently. Each class is dedicated to a particular disability category and operates at a significantly reduced pupil-teacher ratio. Pupils attending these classes also attract specially increased rates of capitation funding. To take one example, since October 1998 over 120 dedicated special classes have been established to meet the needs of children with autism. With a maximum class size of six and the support of a teacher and two special needs assistants, these classes recognise the emotional needs of autistic children. A nationwide pre-school service and education programmes to extend the school year for children with autism have been developed in the past year.

Children with special needs attending mainstream schools may also require access to special equipment to assist them in their education. The funding allocation in this area has grown from €671,000 in 1998 to a current annual figure of €3.2 million. In addition, in the last four years, funding has been made available to allow for the appointment of escorts on every school transport service for special schools and classes.

It is essential that we offer equal educational opportunities to all. We must ensure that all children are given the opportunity to give expression to their private hopes and dreams. It is for this reason I wish to bring this Bill before the House. The right of people with special needs to equal treatment is already provided for in legislation such as the Equal Status Act and the Education Act. This Bill goes further by providing for a structure which will guarantee the rights of children to the greatest possible extent and ensure that parents are central to their child's development at every step of the process. It sets out a range of services which must be provided, including assessments, individual education plans and support services and provides for a process of mediation and appeals where these needs are not met. The Bill establishes the National Council for Special Education, through which the Bill, as enacted, will be given effect.

One of the primary features of my proposals is the principle of inclusive education for as many children with educational disabilities as practicable. The education of children with special educational needs alongside those who do not have such needs has long been Government policy. This Bill gives voice to that policy. Section 2 provides that a child with special needs will be educated in an inclusive setting, unless this would not be in the best interests of the child or the effective provision of education for other children in the mainstream environment. In doing so, the Bill protects the best interests of the children concerned, who can best grow and develop in the company of their peer group.

The drawing up of education plans tailored to meet the educational needs of children with special educational needs is a key provision of this Bill. Through that planning process, disabilities can be identified, needs assessed, goals decided upon and progress monitored. I am deeply aware of the enormous efforts made by educational professionals in schools up and down the country, every day, in meeting a huge range of diverse needs. I am also conscious that, where possible, the best person to co-ordinate an education plan for children is their school principal. Under section 3 of the Bill, where a school principal believes that a child is not benefiting from the regular education programme he or she must take measures to meet the child's educational needs. If these measures do not meet the child's needs, the principal must consult with the parents and arrange for an assessment of the child. The National Council for Special Education will assist by putting in place guidelines as to how this assessment should be carried out.

Importantly, the Bill provides for strict time limits in relation to assessments and education plans. An assessment arranged by a principal must be carried out as soon as possible, but no later than three months from the time the princi pal formed his or her opinion about the child. Where an assessment establishes that a child has an educational disability, the principal must ensure an individual education plan is prepared within one month. In preparing the plan, the parents, special educational needs organiser and any other relevant person must be consulted.

It is intended that a school should draw up the plan where the child's needs are relatively uncomplicated, but section 7 of the Bill provides for a more formal planning process to be undertaken by the National Council for Special Education for children whose needs are more complex. In the case of a plan prepared by the council, a special educational needs organiser will convene a team of people which must include the child's parents and may also involve the child, school principal and a psychologist. While the plan focuses on educational needs, it also must have regard to any other needs identified in the child's assessment and must be consistent with those needs.

Section 10 requires education plans to be reviewed at regular intervals. Schools will have the primary responsibility for this and will report on it to the child's parents and the council. If the special educational needs organiser takes the view that the child is significantly failing to achieve the goals in the plan, the team may be reconvened to review and, where necessary, amend the plan.

In preparing or reviewing a plan, the school or special educational needs organiser must have regard to the educational provision which will be required for the child on his or her becoming an adult and must take steps to enable the child to progress to further education and training. Where this occurs in relation to a child who will turn 18 in the following year, an assessment must be made of how he or she has achieved his or her goals. If those goals have not been met, the effect of this on the child's development will be assessed and, where appropriate, measures will be included in the plan to address those effects. Parents may also seek a review of the plan in certain circumstances. If this request is denied, they can appeal that decision to the council.

The implementation of education plans will require considerable resources to be invested in special education. Section 12 of the Bill creates a statutory duty on the Ministers for Education and Science and Health and Children to make those resources available. All spending is subject to the availability of resources and the agreement of the Minister for Finance – that is a political reality. However, in section 12 I have quite deliberately placed emphasis on the fundamental constitutional duty on the State to ensure the equal and fair treatment of all children so that children with special educational needs have the same opportunities as children without disabilities.

The Bill provides for a range of duties for schools in respect of children with special educational needs. Under section 13, a school must respect the principle of inclusive education, ensure that parents are consulted regarding their child's needs and co-operate with the council. Each school must ensure that teachers are aware of the special educational needs of the students and the importance of identifying children with those needs. They must also inculcate in students an awareness of the needs of people with disabilities.

Section 9 confers on the council the power to designate a school which a child with special educational needs is to attend and the school will be obliged to enrol the child. This is aimed at the practice of some schools of seeking to avoid admission of children with educational disabilities. There are appeal mechanisms in this process.

Parents lie at the heart of the assessment and planning process and a vital part of ensuring their rights is the appeals mechanism provided for in the Bill. The Bill gives parents the power to appeal to an independent appeals board against any statement or description of their child's special educational needs or any other statement or description appearing in the education plan which they consider incorrect or inadequate to meet the child's special educational needs. They may also appeal where they believe that there has been a failure to implement an education plan.

Many parents, however, will wish to pursue a less formal approach to a review of decisions. For that reason the Bill provides that the appeals board must ensure that the parties to an appeal are assisted to reach agreement. On hearing an appeal, the appeals board may give directions to the council or a school which it must implement, or it may dismiss the appeal.

The Bill establishes the national council for special education as the body charged with ensuring that the Bill as enacted will be given full effect. Its specific duties include the dissemination to schools and parents of information relating to best practice for the education of children with disabilities and the co-ordination of special education in conjunction with schools and health boards. The council will monitor progress of students with special educational needs and review the resources needed in this area. The council will also review the provision made for adults with disabilities to avail of higher, adult and continuing education. It will have responsibility to conduct research in the area of special education and provide relevant advice and information to me, as Minister. In carrying out its duties, the council will be advised by a consultative forum which will be drawn from the education partners, the National Disability Authority and others who have a special interest or expertise in the education of children with disabilities.

Work on the establishment of the council is already well under way. As Members will be aware, an order under the Education Act has been approved by these Houses to establish the national council on an interim basis until the commencement of the relevant provisions of this Bill. A chief executive officer and a number of staff have already been appointed. The direct service work of the council will be performed by up to 80 special education needs organisers. These posts were recently advertised in the national press. I hope to make a further announcement about the establishment of the council and its first members in the near future.

Clearly it will take time for the council to be in a position to ensure that services are being delivered to those who need them. Section 21 provides for a road map to the implementation this Bill. The council itself will advise me on when and how each part of the jigsaw should be put in place. I am certain that the target time limit of five years from the date of the establishment of the council, while ambitious, is realistic and achievable.

The provision of appropriate education services to children with special educational needs crucially involves close co-operation and co-ordination of activities between education and health authorities. The health boards play a key role in providing support services such as the various therapies which children with disabilities need and also because children and others with disabilities often reside in health board facilities or attend day care services. The Bill is intended to resolve current difficulties regarding co-ordination.

In the case of a school-going child, the council must provide him or her with the services identified in the education plan as being necessary for the child to participate in, and benefit from, education. If the council or health board believe that the other body can provide the services more effectively, it must inform the other body of this and that body must then ensure that provision. If a dispute arises between the council and the health board, this will be resolved by the appeals board.

In addition, section 36 empowers the council to request a health board to take specified actions where it considers this to be necessary for the preparation or implementation of an adequate education plan or, more generally, to assist the council in carrying out its functions. Prior consultation with a health board is required before a request is made to it. A health board must comply with a request unless, in its view, the assistance requested is not necessary, taking the action would not be consistent with its functions or it would not be reasonable to comply having regard to its resources. If the health board decides that it cannot comply with a request of the council then it must state its reasons and the council may appeal the refusal to comply. On hearing an appeal, the appeals board may direct the health board to comply with the request or it may dismiss the appeal.

These provisions bring clarity to the role of the health boards, provide a formal process through which the boards, following consultation with them, can be informed of what is required, and provide a structure for resolving disputes. The beneficiaries of these provisions will be those who rely on the services of the boards to access appropriate education and training services.

This Bill has been some time in the making and is the culmination of a carefully considered policy process. During its preparation we have had the benefit of being able to review the law applying in other jurisdictions and to consult widely over the last 12 months to ensure that this Bill is tailored to address the issues of greatest concern to health and education professionals dealing with disabilities. Parents and voluntary groups have been especially informative in the drafting of this Bill and have been particularly constructive in their approach to it.

The consultation process is ongoing and I will bring forward amendments on Committee Stage to reflect what is being said to me. In particular, I have received a number of representations concerning the position of children with dyslexia and whether that condition comes within the scope of the Bill. I intend to discuss this matter with the Parliamentary Counsel and, if necessary, to bring forward an amendment.

The Bill also reflects the invaluable advice we received from a number of important committees and groups, including the task force on autism and the special education review committee. In its November 2001 report, the task force made a number of recommendations for reform which have a vital bearing on autism, in particular, and on special education in general. Their key proposals are reflected in the Bill.

I look forward to the debate on this legislation in the Houses, which will raise issues of fundamental importance to our society. The purpose is to introduce clear and applicable legislation to ensure educational rights for children with disabilities are respected. I will remain open to constructive criticism and listen carefully to suggestions for improvements as the Bill progresses through this House. All sides of the House are anxious that we get this Bill as right as we possibly can. I will approach this debate in an open and constructive manner. From the discussions at the special education councils, I know the other side of the House will approach this debate in a similar manner.

As I began this speech by quoting one famous American, I will finish by quoting another, the philosopher and educator, John Dewey: "Education is a social process. Education is growth. Education is not a preparation for life; Education is life itself." I commend the Bill to the House.

Ms Enright:

I welcome the publication of the Education for Persons with Disabilities 2003 Bill.

The Commission on the Status of People with Disabilities, established on 29 November 1993, made a number of key recommendations and findings on the subject of education for those with disabilities in its report, A Strategy for Equality. Rightly, the commission stated clearly that every child is educable. The commission reaffirmed the right of all children, including those with disabilities, to a free and appropriate education in the least restrictive environment. In Ireland, every individual must have an equal right to educational provision. We must consider how equal is that right today. One of the key recommendations of the commission stated:

It is the responsibility of the State to provide sufficient resources to ensure that pre-school children, children of school going age and adults with disabilities have an education appropriate to their needs in the best possible environment.

The commission recognised that education was a process of sharing, developing, building, strengthening, encouraging and recognising the abilities of all people. Its aim was clear – to enhance and enable a person to achieve his or her goals. However, the commission found that if it was to measure the status of people with disabilities according to their rate of participation and success in education, then equality was clearly a long way off.

Ten years on, this is still the case. Unless the resources are put in place, the best legislation will not ensure that those with disabilities can fully participate in our education system. It is difficult not to be sceptical that this legislation will provide the type of appropriate and resourced services that are so badly needed. Only last Saturday, it was reported that the State secondary schools do not have the resources to teach the vast majority of their special needs students or to implement this Bill's provisions if and when it is enacted. In Galway, the National Association of Principals and Deputy Principals annual conference warned that schools still do not have the resources they need to teach incoming students with special needs. One principal stated that even though the number of students with special needs had increased in his school year on year, no additional resources had been allocated since the late 1990s. The outgoing president of the association stated:

It would be little short of cynical on the part of the Government to enact the Education for Persons with Disabilities Bill when schools quite obviously do not have the resources to implement it.

How are people to react when, on the one hand, the Government presents legislation designed to improve the education of persons with disabilities and, on the other, fails to adequately resource the same people?

Earlier this month a national representative body for people with intellectual disability, NAMHI, said it feared that a recent audit of special needs resources undertaken by the Department of Education and Science, would result in cuts in the number of special needs assistants to children in primary and secondary schools. The Department of Education and Science appears to think that the current number of special needs assistants can be cut by 30%. NAMHI reasonably pointed out that this approach is at variance with the proposals in the Education for Persons with Disabilities Bill 2003 to entitle all children with a disability to an assessment of their educational needs and the allocation of resources to meet these.

While access to the appropriate education resources is one problem, access to proper assessment is another. I understand this will be addressed in the Bill. However, the Department of Education and Science recently confirmed that it would not hire any more psychologists for this year, even though huge numbers of schools and students are not covered by the service. Some parents have been waiting for up to two years for an assessment for their child. Access to the right psychological services at the right time can make a huge difference to a child experiencing difficulties at school. The appropriate psychological intervention can have a positive effect on the child for the rest of their education and life thereafter. Even in parts of the State where the highest numbers of Department psychologists are deployed, more than one school in ten is not covered by NEPS. The figures for the mid-west, north-west and midlands regions are truly appalling. In the mid-west region, 71% of schools are not covered by the NEPS; in the north-west region, 57% of schools are not covered; and, in the midlands region, 44% of schools are not covered. These figures are among the worst nationally, but the figures for many other parts of the country are also worrying. The NEPS structures are in place but need to be expanded quickly and efficiently. This has been clear for years. However, the waiting lists for children waiting to see an educational psychologist are as long as ever. The worry for parents of children who require this service continues.

In an attempt to bring waiting lists for this service under control, the Department in the past 18 months has spent more than €2 million funding private psychological assessments. This is solely due to the fact that their own service has not been rolled out as efficiently and comprehensively as it should have been. Neither NEPS as it stands nor the provision of private assessments is reaching all the children who need these services. I know of a number of families which have spent almost €1,200 in the past few weeks to have children assessed due to the inadequacies of the service provided by the Department of Education and Science. These assessments show clearly that the special needs provision being made to their children is totally inadequate.

There are huge funding difficulties in the current education system. Those with special needs are not receiving the type of assistance or resources they require. The representative groups, the parents of students with special needs and the students themselves will need a lot of convincing that the introduction of legislation will be matched with adequate resources. The Minister for Education and Science said in his speech that lack of resources, poor planning and a dis connection in the provision of services all combined to act to the detriment of the child with special educational needs. What will actually change as a result of this Bill? The issue of resources is clearly paramount. However, the Minister must also realise that we still have insufficient numbers of the necessary speech and language therapists, play therapists, occupational therapists and physiotherapists.

Some steps were taken following Dr. Peter Bacon's report with some additional places provided in NUI Cork, NUI Galway and NUI Limerick. The first intake was to happen in the academic year 2002 to 2003. However, only one course commenced that year and the others only came on stream this academic year. I am concerned that there is a degree of inconsistency in the approach of the Departments of Health and Children and Education and Science in this area. This would not be the first time. Parents are constantly expressing their concerns that they feel their children fall between two Departments, which pass responsibility from one to the other.

The Minister for Education and Science hopes to fully implement this Bill in five years. This can only be achieved if the relevant qualified personnel exist. Without speech and language therapists, play therapists, occupational therapists and physiotherapists, little can be done. The Minister for Health and Children, Deputy Martin, in response to a parliamentary question I tabled recently, referred to a timeframe of at least a decade, if not until 2015, before the required number of therapists are in place. By then, an entire generation of children with special needs will have passed the magic age of 18 years and will have missed out on the vital services needed to give them their right to an education. This issue will have to be addressed by both the Minister for Education and Science, Deputy Noel Dempsey, and the Minister for Health and Children, Deputy Martin, if we are to make real progress in an acceptable timeframe. Without qualified people we will not be in a position to implement the Bill, as the Minister would wish.

One of the most unusual provisions in this Bill is the changing of the definition of educational disability by defining it as "a restriction in the capacity of the child to participate in and benefit from education on account of an enduring physical, sensory, mental health or intellectual impairment". I am concerned at the departure from the previous definition of educational disability as used in both Education Act 1998 and the Employment Equality and Equal Status Acts. Surely a more consistent and coherent definition would be preferable. A person's disability does not change depending on the Act that is read, nor should the definition of it change.

One group particularly outraged at the current definition is the Dyslexia Association of Ireland. This is a countrywide group made up of families, teachers and adults with dyslexia. Dyslexia is not a physical, sensory, mental health or intellectual impairment. It is a specific learning disability, independent of intellectual or physical ability. Dyslexia is not an intellectual impairment, but it can be a disabling condition for learning and children with dyslexia can and often do have special educational needs. This was recognised by the report of the task force on dyslexia, which stated "since the difficulties presented by students with dyslexia range along a continuum from mild to severe, there is a need for a continuum of interventions and other services". Their needs have also been recognised but not always provided for by the Department of Education and Science through special units, accommodation and arrangements for resource teaching as outlined in various circulars.

I will be tabling amendments, which I would urge the Minister to consider and accept, to ensure dyslexia is included under this Bill. It is not a question of whether it is necessary; it is clearly necessary. To exclude the needs of those with dyslexia would be extremely unjust and unfair and will fail children affected. In the UK's task force on dyslexia children and young people who are dyslexic have been described in the code of practice as having special educational needs. I do not value our children any less.

Trying to explain this away through the use of the explanatory memorandum does not provide comfort. To state: "There is a risk that legislation like this Bill could lead to over-identification of children with learning difficulty as children with educational disabilities" is to ignore the genuine needs of some but not all of these children. The memorandum goes on the say that it will ensure "that genuine needs are met". The only way to ensure and secure that is through this Bill otherwise nothing will change.

The mother of a 14 year old boy spoke to me last week. He attended his local national school up to age 12 when he left to join an especially dedicated language class at another primary school. This class had eight pupils, a full-time class teacher and a speech and language therapist usually present 3.5 days per week. He began there with severe mixed receptive and expressive language disorder and severally impaired reading and spelling skills. He made significant gains, however he still presents with a mixed receptive and expressive language disorder and very impaired reading and spelling skills.

This boy has made some progress, but he had to transfer to a mainstream second level school. Despite repeating sixth class, his mother tells me he is at fourth class level. He had been in an eight-pupil class doing three subjects. He now is in a ten-pupil class doing 11 subjects. Yet, the Department of Education and Science has refused to sanction resource hours for him. How can he cope in these circumstances? What are his parents supposed to do? How can we justify excluding someone like him from the provisions of this Bill? The only help he is getting at the moment is a voluntary homework programme for three hours per week on the schools own initiative. He can do it if he is helped yet no help is being provided for him. His genuine and proven needs are being ignored.

This Bill places huge emphasis on co-operation between the Department of Education and Science, the national educational psychological service, NEPS and the health boards. The parents of these children have long wished for the creation of multi-disciplinary teams, yet their experiences of this to date do not bode well. I am frequently shown instances where assessments by NEPS psychologists, health board psychologists and private psychologists make hugely varying recommendations.

Siobhán is nine years of age. At the age of two her parents became concerned about her lack of interaction with others and her lack of speech. Her family doctor quickly ascertained that nothing was physically wrong with her and after a visit from a counselling nurse, she met a senior psychologist in July and November 1997. At this stage the possibility of her showing traits associated with autism was discussed. In May 1998 she was assessed again at St. Paul's Hospital and Special School and while she was showing atypical traits they could not say definitively that she was within the autistic range.

In March 1999 after completion of the childhood autism rating scale, a moderate range of autism was indicated. The autism team has seen Siobhán four times since then. Each time their recommendations have been the same. She needs intensive speech and language therapy, intensive play therapy and occupational therapy, and she needs double the resource time allocated in the primary school.

Her parents are extremely concerned at what now seems to be a policy of not providing services by the autism team to children with a dual disability, in other words with autism and an intellectual disability, even though so many children in the ASD range present with some form of dual diagnosis. Siobhán's parents enrolled her in her local primary school, which has been extremely helpful and supportive. Their experience of the Department of Education and Science is not so good. They had to engage a solicitor to act on their behalf to secure a special needs assistant and resource time for their daughter and this took more than a year. The special needs assistant and the teachers had to undergo training on their own time and at their own expense, a point to which I will return later.

The autism team recommended the child receive 15 resource hours per week whereas the NEPS recommendation was that she receive five hours per week. It was understood that she also had a special needs assistant – and she has. However, in a reply to a parliamentary question the Minister stated: "the child has been receiving one-to-one support for the entire school week". This is strictly true, she has been receiving support, but not the recommended hours of resource teaching, which goes much farther than support.

Out of frustration and a determination to ensure that their daughter receives the education she needs Siobhán's parents arranged to have her assessed by a consultant psychologist at the forefront of her field. This cost them €1,131 and they managed it with the assistance of their support group. The psychologist has described Siobhán as "just about keeping her head above water in a raging sea". She continued by saying that "Siobhán has fought hard to hide her disability and now, in third class, her deficits are becoming glaringly obvious." Another year of Siobhán's childhood had passed, early intervention is the key for children like her, yet relying on a system where the wheels turn so slowly, where recourse to solicitors is needed to get the help needed, means early intervention is nearly beyond Siobhán's reach.

Down Syndrome Ireland is the national representative association for parents and families of persons with Down's syndrome. The organisation represents more than 2,500 families and is the largest parent representative organisations in Ireland for persons with learning disabilities and their families. Down's syndrome is a congenital condition that occurs in about one in 600 births worldwide.

At the outset, Down Syndrome Ireland is concerned that the proposed Bill is seriously flawed and does not fully address the minimum requirements of those with disabilities and their families. It is concerned that the new proposed legislation contains similar provisions to the Disability Bill that was published before the end of 2001. Down Syndrome Ireland has already called upon the Government to introduce fully rights-based and not resource-constrained legislation and to hold a full consultation process.

Down Syndrome Ireland has a number of serious concerns about the Bill. First, I wish to focus upon its reading of section 14 of the proposed legislation. Section 14(3) provides for a review of an educational plan when a person is within 12 months of reaching the age of 18. Typically, this plan would focus upon the extent to which educational goals were reached and the underlying reasons behind any failures to reach these goals. The legislation states explicitly: "The Council shall cause an assessment to be made of . . . . . the reasons for any failure to meet those goals and the effect any such failure has had on the development of the child and the plan shall include, where appropriate, measures to address any such effect." What is obviously missing from the legislation is an obligation to challenge any such identified failure. The assessment may identify a number of key failures and possible ways in which they might be tackled to the benefit of the student. However, neither in this section of the Bill nor in any other section of the legislation is a statutory obligation placed on the Department of Education and Science or any health board to follow through on these recommendations.

Of considerable concern to some groups are the provisions in section 9. This section states: "The Council may designate the school which a child with special educational needs is to attend for the time being and that school shall admit the child upon being directed by the Council to do so." Leaving aside the fact that "for the time being" is a very loose definition of time that could range from months to years, several organisations have seriously questioned this aspect of the proposed legislation. In practice, would the implementation of section 9 of this Bill lead to a two-tier system where some schools would be forced to accept pupils with special needs, leading to a lack of balance and equity between schools, and removing from parents the choice as to which school to send their child? This section requires significant clarification. One of my main concerns is how this Bill will operate in practice. The Minister alluded to this when he said he did not think it is going to be possible to implement the Bill overnight. To be fair to the Minister he also said he hoped to have it implemented in full within five years. I would prefer a shorter timeframe.

I wish to deal with the role of the teacher and school principal as envisaged in this Bill. This Bill has substantial implications for teachers and school principals. The role of the principal will be significantly expanded under sections 3, 5, 8, 10, 11 and 14 of this Bill. It will add to the difficulties already being experienced by principals, particularly teaching principals because of their workload. Everyone desperately wants this legislation to achieve what it sets out to achieve; everyone wants all children to have access to the services they need to achieve an education. The role of the school principal in the Bill as published is paramount but left unresourced they cannot fulfil their obligations. Has the Minister considered at this stage how he plans to release teaching principals to allow them to carry out their newly envisaged duties? What new up-skilling and training will be given to principals to deal with their new role? They are being asked in section 3 to make a serious judgment on the needs of children and yet to make the call on the needs of a child for assessment, it must be ensured that such a power is matched by the training required. Some principals will be very experienced in this area where they have had children with special needs in their school, others will have little experience depending on the need in their individual schools. I share the concerns expressed by the INTO about the phrase, "to the extent that could be expected of the student", which appears in section 3(1) in that its use could exclude a child from the resource provision.

Section 7 cites those who will be involved in preparing education plans. I have some difficulties with this section. First, everyone has believed for some time prior to the publication of the Bill that this would be done through a multidisciplinary approach. This should clearly include everyone involved with the child, from teacher, to occupational and play therapist, doctor, if necessary, speech and language therapist, special needs organiser, the child's psychologist and, of course, the parents. Rather than clearly setting out such a multidisciplinary approach those who are to attend at the preparation of the education plans are left to the discretion of the special educational needs organiser. Will the decision on who will attend be dependent on resources? The presence of the teacher is also paramount in preparation of these plans as the teacher has far more day-to-day involvement with the child and is acutely aware of the child's classroom needs and abilities.

The concerns I have expressed on the multidisciplinary approach to education plans can also be directed towards section 5 relating to assessments and it is paramount that a multidisciplinary approach is mandatory and not discretionary. The findings on assessments should also be made available automatically to parents because forcing them to make a request is creating another needless layer of bureaucracy. I very much doubt if there are any, not to mention many, parents who will not want to see the results of an assessment carried out on their child.

The training of teachers in this whole area cannot be over-emphasised. At the launch of this Bill the Minister said in response to a question that, "9% of pupils within ordinary primary mainstream schools qualify for special needs, 12% if you take in special schools, that is four times the European average". He also stated, "that is extra high by European standards". In light of this the need for greater and more mandatory teacher training in this area must be seriously examined.

I know that the Minister's stated policy is that all teachers working with children with special educational needs will have relevant training and continual professional development. However, the reality is that this is insufficient at present. The courses contain "elements" and "inputs" to use the Minister's own words, of the necessary training required, but in light of the figures I quoted earlier, it simply is not enough. I know the Minister agrees with me on this point because on Question Time he said that we have some catching up to do. Obviously there is a degree of urgency here, because people's expectations will be increased and indeed have increased since the publication of this Bill.

I have also asked previously about making these courses available on a more mainstream basis, rather than just as an optional module. I know the Minister was in negotiation with the teacher training colleges on this issue. At what stage are these negotiations? What role has the education support service in this area? Are all education centres providing the necessary supports to teachers so they are sufficiently aware of disabilities? I know a considerable number of teachers have taken inservice training in this area. However, the profession as a whole needs to be in a position to avail of this training.

No doubt one of the biggest concerns everyone has with this Bill is that it does not commit to the rights-based approach, which everyone expected and had earnestly hoped for. The Minister suggested quite clearly at the launch of this Bill that there might not be any extra budgetary resources to fund the provisions of this legislation. Will this Bill fail because of a lack of resources? How can we progress if we cannot fund this? Let us not fool ourselves or try to fool everyone else. This is going to take money to work. The provision of the many good parts of this Bill will take a substantial amount of extra resources.

Section 12 of this Bill is where it departs from the aims we all sought to achieve. Section 12(1) begins, "The Minister and the Minister for Health and Children shall each, with the consent of the Minister for Finance. . . . ". This does not bode well. Both the Minister for Health and Children and the Minister for Education and Science are given a duty to fulfil but it is subject to the consent of the Minister for Finance. Where is the rights-based approach and where is the reality? Will this clause effectively lessen the rights already in existence following court judgments?

The Minister must have the power and resources to implement this Bill. Rights can only be implemented if the will is there to do it. No one wants to see another stream of parents go to court to educate their children. I do not believe this Bill actually confers any extra rights on children that do not already exist under the Constitution but I will not tolerate any attempt to diminish those rights. It was outlined to the committee that the Department of Education and Science is moving from the rights-based approach it had slowly been adopting following the court judgments to a resource-based approach following the publication of this Bill. For the Minister to say he has quite deliberately emphasised the fundamental constitutional duty of the State to ensure equal and fair treatment of all children is, quite frankly, irrelevant. All legislation passed by this House is subject to the primacy of the Constitution. This supposed emphasis makes no real difference. The political reality is that rights are subject to the Minister for Finance. I contend either the rights exist or they do not.

Another aspect of the Bill is the absence of any real attempt to deal with physical disability. This is a very real issue and one which must be tackled. Clearly most people with a physical disability do not have any difficulty with being educated from an intellectual point of view, but the issue for them is access to the education system in a physical sense. There is a lack of physical access, availability of personal assistants and assistive technology. There are still many children attending schools who do not have proper and sufficient access. I know of true stories of parents having to collect children in wheelchairs to bring them home to use the bathroom because the school does not have the facilities. I know that grants exist and are available but not at the speed required to deal with the situation in a compassionate and practical way.

I believe that the special education council must be made accountable. This is an issue I raised with the Minister when we discussed the council at the education committee. It cannot be tolerated that the Minister can wash his hands of all responsibility now that the council is in place. We have seen the response to the difficulties being experienced by the National Educational Welfare Board. It is finding it extremely difficult to do the job it has been directed to do because it is crippled by a lack of funding. However, when we raise the issues of truancy, school drop-out rates and young people leaving the education system before they are legally entitled to do so, the Minister responds that the NEWB has statutory responsibility. The buck for the provision to children with special needs has got to stop with the Minister for Education and Science. If he continues at this rate of setting up agencies which become solely and statutorily responsible, we will not need a Minister for Education and Science; it will just be a matter of having the Minister for Finance send over the budget to these agencies every year. The council must be accountable and not just by publishing an annual report. It must be fully politically accountable, otherwise to where do genuinely dissatisfied people turn?

I have outlined many of my considerations and I look forward to tabling many amendments on Committee Stage. I ask the Minister to consider what I have said today.

Ms O'Sullivan:

The Labour Party welcomes the fact that disability legislation has finally reached the floor of the Dáil after six very frustrating years for representatives of a variety of disability organisations who have tirelessly and determinedly fought to have their rights established. The shocking inadequacy of the two Bills last year was a slap in the face for these campaigners and we worked with them to force the Government to withdraw both Bills because they would have removed rights rather than progressed them. There are many things wrong with this Bill which the Labour Party will work to have amended, but it can be used as the basis for long-awaited progress. The Labour Party welcomes the Bill and will not oppose it on Second Stage.

However, it will not be worth the paper it is written on if resources are not committed to implement the measures. A child may have an assessment but that will not make any positive difference if the supports necessary are not available. This crucial element is not clear in the Bill as drafted and I urge the Minister to address it at this stage. Students with disabilities must not become pawns in the struggle for resources.

Emergency motions passed at the annual conference of the National Association of Principals and Deputy Principals this month spell out its members' concerns in an alarming way.

They are so sceptical about the allocation of resources that they have called on management bodies to draw up admission policies that give them the right to postpone the entry of special needs students into schools unless resources are first made available. It is vital that the Minister provides clarity on this matter.

Our children will be the ultimate losers in the battle between the Department of Education and Science and the schools. Deputy Enright referred to specific cases in this regard. A number of individual cases have been brought to my attention where professional assessments supported the view that children had special needs and required educational supports, but these were not forthcoming. One of the delegates to the National Association of Principals and Deputy Principals described the situation as being in chaos and attributed the observation to somebody within the Department of Education and Science. The Minister needs to address the issue of resources before anybody will be satisfied that the legislation will make any difference.

Section 12 is the crucial section in this regard. Deputy Enright also referred to this point. It deals with the issue of resources and it must be amended if the legislation is to be rights-based. Deputy Enright pointed out that resources are entirely subject to the sanction of the Minister for Finance. Another point of concern was drawn to our attention during the committee hearings, namely that the section is weaker than the corresponding section 13 in the Bill that was withdrawn. It has an extra few words which make a great difference. It states that:

The Minister and the Minister for Health and Children shall each, – [and I welcome the fact that the Minister for Health and Children is included in the Bill] – with the consent of the Minister for Finance, out of moneys provided by the Oireachtas, provide to or in respect of schools and their employees such moneys and other resources – [This is the extra bit] – as are determined by him or her for the purposes of the implementation of education plans prepared in respect of children with special educational needs.

The determination of the Minister for Education and Science and the Minister for Health and Children is included in this Bill although they were not in the previous draft. This is a serious flaw which gives an opt-out to the Minister with regard to the provision of the necessary resources. I urge the Minister to withdraw these words from the section. While I share the concerns of Deputy Enright in regard to other aspects of section 12, this point is crucial in terms of the provision of resources and the changes made to the corresponding section in the withdrawn Bill.

The scandalously inadequate funding provided to the National Educational Welfare Board, which I raised on the Order of Business this morning, emphasises what a poisoned chalice legislation can be if those whose statutory duty it is to implement its provisions are not adequately resourced. The board has a legal obligation to ensure that children go to school but it cannot afford to employ sufficient educational welfare officers to do the job. The problems that schools are experiencing as a result of this were high lighted at our committee hearings and there is a great deal of fear in regard to the current Bill. Mr. Eddie Ward, chief executive officer of the National Educational Welfare Board, spoke on television yesterday to highlight the problems the board is having in implementing the legislation. He called for €25 million to be allocated for this purpose. I reiterate this call to the Minister. The board has a statutory duty. The Garda can no longer fulfil the function it had under previous legislation. As long as we do not have sufficient educational welfare officers to cover the country, young children – some as young as ten and 11 – will remain absent from school. Nothing is being done to address this serious issue. Although a statutory provision exists to deal with such matters, it is not being implemented on the ground. A similar difficulty could arise with this legislation in that the special needs council will have statutory duties but may not have the resources to implement them. If the legislation is enacted without the necessary resources for its full implementation, this will cause chaos, confusion and unmet expectations.

A timeframe must be outlined for the implementation of the Bill's provisions. I accept that this is addressed in section 21 where a timeframe of five years is set out. It is important that this expectation is realised.

The changes the Minister recently implemented in special needs support appear to be going in the opposite direction to the child-centred approach of the legislation. Hundreds of children around the country who need support are not getting it. There has been an embargo on recruitment of educational psychologists. I submitted a number of parliamentary questions last week in this regard. As Deputy Enright outlined, there are three areas of the country in particular, including my own mid-west region which is the worst off, where no educational psychologists are available under the NEPS programme to schools. Private psychologists are employed and this can give rise to difficulties as their proposals are frequently not deemed to be in accordance with the terms under the NEPS scheme. As a result, schools are not getting the resources they need.

The Department sent a circular, SP ED 24/03, to the boards of management and principals of all national schools. The tenor of the circular appears to go in the opposite direction to that which is intended in the legislation. Section 10 of the circular states:

The Department will be engaging in discussions with the education partners with a view to developing a weighted system of allocations for special needs teaching resources with effect from 2004/2005 school year. This would involve an annual allocation being made to schools based on predicted incidence of special educational needs within different size school populations.

This appears to suggest that an estimate would be made as to the number of special needs children that should be in a particular school, depending on its size. This is totally opposite to the child-centred approach of the legislation, which refers to the individual assessment of needs and individual education plans. Will the Minister indicate how this will work in practice? In the next school year there is a suggestion that allocations will be made on the basis of school numbers, whereas the legislation which will be in the process of being implemented at that time is going in the direction of the individual child. The latter is the proper approach and is in line with what the Minister outlined in his speech. It is also the recommended approach of the various organisations that made submissions to us.

I am particularly concerned about the embargo on psychologists who are clearly crucial in terms of identifying needs under the legislation, as well as the other specialists such as speech therapists and so on that are also in short supply. People with disabilities must be given some certainty as to when their rights will become reality.

The right to education is enshrined in Article 42 of the Constitution. This article has been interpreted in the courts, most notably in the Sinnott judgment and has been elaborated on in legislation, including the Equal Status Act 2000, the Education Act 1998 and the Education (Welfare) Act 2000. The State has a further obligation to fulfil its duties under international legislation, including the UN Convention on the Rights of the Child, the UN International Covenant on Civil and Political Rights, the UN International Covenant on Economic, Social and Cultural Rights, the European Convention on Human Rights and Article 13 of the Treaty of Amsterdam. While these measures may not be justiciable in Irish courts because they have been incorporated in a dualistic way rather than directly into domestic law, they must and should be observed. The UN Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, drawn up in 1993, also form part of the backdrop to this legislation.

It is worth noting that the Irish Human Rights Commission specifically stated its intention to ensure that recent developments at international level towards a rights-based approach to the issue of disability are reflected in our domestic legislation. I suggest that if the Minister has not already consulted the commission in respect of this legislation, he should do so. A great deal of attention was focused on the Disability Bill but this Bill is also a crucial part of the legislation in regard to disability and the views of the Irish Human Rights Commission should be taken into account.

During the three days of hearings on the Bill at the Joint Committee on Education and Science, a member of the committee asked whether people with disabilities were asking for greater rights than other students. The answer is that they are merely looking for their equal right to an environment and facilities that will enable them to learn, just as the system provides for others whose requirements coincide with the majority of their fellow-students. This Bill is part of the legislative framework needed to delineate rights in the Constitution and in international law. It is no more than that. The legislation includes a reference to this constitutional right, but this exists anyway. It is about equity, it is our duty and we should get on with it.

Getting to this point has not been easy. Before the previous Government took office in 1997, specific legislation was promised to address the rights of people with disabilities. While the Employment Equality Act and the Equal Status Act include disability among the nine grounds under which discrimination is outlawed, the need for specific legislation was acknowledged from the time of the publication of the report of the Commission on the Status of People with Disabilities in 1996. Consultation on the proposed legislation began in the late 1990s and disability organisations worked together to reach consensus on the key points which must be addressed. A major conference, Get Your Act Together, which I attended, was held in December 2001. Ongoing discussions with officials of the Department of Justice, Equality and Law Reform and the Department of Education and Science, as well as with the Ministers concerned, gave rise to the understanding that there was a two-way understanding which would result in useful legislation. It was a huge disappointment, therefore, when the Disabilities Bill 2001 and the Education for Persons with Disabilities Bill 2002 were published. Both Bills ignored the central issue on which the organisations had lobbied. They contained no rights. In fact, section 47 of the Disabilities Bill denied any right to take court action in respect of any aspect of the Bill. The legislation had to be ignominiously scrapped which put large quantities of egg on Government faces. It was much more serious for people with disabilities. They were back to the drawing board in the clear knowledge that what they had thought was consultation turned out to be a deaf ear.

This is the background to the current Bill and its larger sister, the Disabilities Bill. The Disabilities Bill should have come first. A single assessment of need is a central recommendation of the Commission on the Status of People with Disabilities. That need begins from birth in many cases and in early childhood in many others. It is essential that the provisions in the Disabilities Bill are dovetailed with this one. I understand the Minister for Education and Science has had discussions with the Minister for Health and Children on this matter. It has been pointed out to members of the Joint Committee on Education and Science that joined-up government in this area is crucial. There must be joined-up Departments as well as joined-up Ministers as there are already problems where the responsibilities of the Departments of Education and Science and Health and Children overlap. It would have been better, therefore, to publish the Disabilities Bill first as the broader assessment of need will be at birth. The education assessment must fit into what has gone before.

The Taoiseach told the Dáil that the Government intends to put the Education for Persons with Disabilities Bill through both Houses of the Oireachtas before publishing the Disabilities Bill. Can the Minister for Education and Science clarify whether that is still the intention? It is difficult, in that context, to be sure that arrangements to assess need will be effective for all children. Responsibility at pre-school level is with the health boards and it is not clear how needs other than those in the educational area will be addressed. In effect, we are making part of the jigsaw without having access to all the pieces, particularly those vital first framework pieces inside which the rest should be placed.

At the other end of the age spectrum, the needs of those over 18 are ignored with the exception of a requirement to arrange for the transition from school to further training or other placements. What about those who, like Jamie Sinnott, have not reached their basic learning aims at age 18? What about the many third level students who have a disability? The Bill's title is misleading in its reference to "persons with disabilities" given the fact that its provisions deal only with those under the age of 18. That is a real problem. I am not sure why the title was so inclusive, when the legislation is not. Where do the concepts of life-long learning and second chance education fit in the proposed framework? In its submission to the Committee on Education and Science, the National Association for the Mentally Handicapped of Ireland requested a specific reference in section 14 to the right of a child to stay on in school if by the age of 18 he or she has not achieved basic educational goals. That must be addressed. Can the Minister explain how he intends to address third level, second chance and continuing education and literacy, particularly for people with severe and profound learning difficulties who, clearly, do not reach their potential at 18? They need ongoing facilities. The reference in section 14 as currently drafted is inadequate. Will the Minister introduce further legislation to deal with those over the age of 18?

Another major flaw in this Bill which must be addressed is its failure to include all children with learning disabilities. The Minister and Deputy Enright referred to this issue. Specific learning disorders such as dyslexia, ADD, ADHD and Asperger's syndrome appear to be excluded from the definition of "disability" which has been changed since last year's Bill was withdrawn. The definition is also different from the one which appears in the Education Act 1998 and the Employment Equality and Equal Status Acts. The Minister has indicated his intention to consider making an amendment in this regard. Such an amendment is essential and in this regard the Minister should specifically commit to making it.

I am concerned, as was Deputy Enright, about the Bill's explanatory memorandum. There appears to be a clear intention to exclude certain learning difficulties from the provisions of the Bill. According to the memorandum, not all children who have difficulties learning are children with special educational needs arising from a disability. While the Minister has given us some assurances today, he needs to be much more specific about the Bill's inclusivity, particularly on the conditions to which I have just referred.

It became clear to members of the Joint Committee on Education and Science during discussions with organisations in the past few weeks that they do not constitute a homogenous group. What is appropriate for one person will not work for another. The most striking example was when two organisations representing people with hearing impairment shared a session before the committee with the National Council for the Blind. It was made clear to the members of the committee that special schools in which Irish sign language is the first language are the best environments for most young deaf people. On the other hand, the National Council for the Blind argued convincingly that the local school is the place most suited to the needs of a visually impaired child. At another hearing, parents of children with severe and profound intellectual disabilities at St. Vincent's in Dublin described their children's needs as being primarily related to health rather than education. The school model did not suit them.

Mainstreaming as opposed to special schooling has been a subject of debate for many years. Some countries have tried to fit almost everyone into the mainstream while others have relied on special schools but neither approach has proved successful. The available evidence suggests that both options must be available with choices being made in the interests of each individual child. Section 2 of the Bill makes provision in respect of the factors to be considered in making such decisions. The section must be amended as it does not provide for equality in respect of the needs of children with a disability. There must be balance. While I accept fully the duty to consider the needs of the other children in the school, it must be on an equal rather than a superior basis.

Assessment of needs must be centred on the individual child's best interests. The system must fit the child rather than the child having to fit the system. The Bill is unclear as to the absolute right of parents to have their child assessed if they believe he or she may have special needs. The Commission on the Status of People with Disabilities recommended that this right be central to legislation. The Bill is generally weak on the centrality of parents to decisions affecting their children, a point which was brought home to members of the committee. Parents must be part of the entire process and they must be represented on the various bodies referred to in the legislation before us.

Representation for people with disabilities and/or the parents of children with disabilities must be guaranteed on the council, the appeals board and the consultative forum as recom mended by the Commission on the Status of People with Disabilities. I share Deputy Enright's opinion of multidisciplinary approaches to the assessment of needs and education plans. Another major omission is the absence of any reference in the Bill to an advocacy service. The disability legislation consultative group which has been meeting with the Department of Education and Science and the Department of Health and Children has identified advocacy as one of the core elements needed to ensure that rights in law can become a reality in people's lives. The group spelt that out yesterday in its meeting in Buswells Hotel. In the USA, where disability legislation has been pioneered, advocacy has helped to secure the services needed for many who would not have had the resources to pursue their rights. It is understood that this will form part of the Disabilities Bill but it is equally important that no one loses out on education because he or she or his or her family does not have the capacity to take advantage of the provisions of this legislation. I urge the Minister to address the issue of advocacy.

It is essential that teachers and schools are properly prepared and that teacher training and inservice courses are geared towards the integration of children with special needs in schools. As the Minister knows, there is a particular concern with regard to school principals and the extra responsibilities they are being required to undertake in this legislation. Principals feel they are already overstretched by a variety of duties and are somewhat concerned that drawing up education plans will be their responsibility. While the special needs organisers and others will be involved, they would like the Minister to consider involving the special needs organisers in a more direct manner and removing some of the burdens from principals. I have referred to seeking the deferment of entry for special needs pupils where resources are not available.

Many other specifics will be debated on Committee Stage and it is my intention to work to have the Bill considerably strengthened. For example, section 9 refers to the designation of schools. It is important that schools do not manage, through their policies, to have themselves removed from designation. There should be no good reason, if a child is to attend a mainstream school, it should not be his or her local school. The Minister has expressed strong views on this aspect, but I hope the Bill will tighten as far as possible provisions in this regard.

The issue of pre-schooling is also crucial. It is linked to the need with the health boards and so on. Pre-school services are underdeveloped but obligations will be imposed on available services to work under the provisions of the legislation. Members of the Irish Pre-school Playgroups Association attended committee hearings and expressed strong support for the provisions in the Bill while emphasising the need for the necessary support and resources. That is true of the entire pre-school sector. Another forum will deal with the need to build up this sector but it needs to be resourced under the terms of this legislation.

There will be much work to do on Committee Stage and I welcome the Minister's indication that he will introduce a number of amendments. I also intend to do so on behalf of the Labour Party, particularly with a view to addressing the question of rights and resources.

The Minister quoted from the views expressed by two Americans. I wish to quote from a speech made by Professor Gerard Quinn of UCG, a renowned expert on rights, especially disability rights. He has spoken on this issue a number of times, including at the conference held in Jury's Hotel in 2001. Speaking at the Human Rights Forum, Dublin Castle, in July 2001 he stated:

The core question here is as old as the first city states of Greece. It implicates a moral vision of the political community – of who is "in" and who is "'out". It concerns our societies' attitude toward human difference – whether this difference is one of race, creed or ability. It follows that the modern human rights agenda in the context of disability (and more generally) is not so much about power and protecting people against power (although that is very important in institutional settings) – it is about admitting people to power over their own lives and conferring on them equal rights to belong and to participate. It is about re-engineering social support to serve the overriding goal of expanding the zone of freedom to include all and not to maintain people – whether in misery or in luxury – on the periphery; squatting anxiously forever on the edge.

That is more eloquent than anything I could have said but it is what we are trying to achieve in this legislation and in the Disability Bill which we anxiously await. It is about equal rights and facilitating people to participate in the process. It is also about society and the education system making the necessary changes to facilitate people with disabilities. This is where empowerment becomes important. We need to view things differently from the past where, rather than seeing people as the problem, we create the social structures to include them. The Bill needs to be considerably strengthened to achieve that goal.

Mr. F. McGrath:

I wish to share my time with Deputy Crowe and Deputy Gogarty.

Acting Chairman (Mr. Costello):

Is that agreed? Agreed.

Mr. F. McGrath:

I thank you, Sir, for giving me the opportunity to address the 29th Dáil on this important legislation. Before I address the Bill's provisions I wish to outline three cases in my constituency I have had to deal with as a backbench Deputy. The first involves a boy with autism who has been out of school since September. His parents are totally stressed but no educational ser vice has been provided. When I lobbied the Department last November the parents were offered six home teaching hours. That is unacceptable. The average child gets 25 hours of teaching per week. It is a disgrace, especially when only a couple of months has elapsed since the holding of the Special Olympics.

The second case involves another child with disability who started school in September and who requires a special needs assistant. The teachers and parents contacted me but they are still waiting for one. The third case involves a child with disability who is finishing primary school. The parents do not know what school the child is to attend next year as the local school has indicated it does not have a special class facility or the necessary resource services.

This is happening in the European Year for People with Disabilities and a couple of months after the holding of the Special Olympics. If this legislation does not address these issues, Deputies might as well leave the House. It is unacceptable.

As a parent of a young daughter with Down's syndrome I have a special interest in this issue and I speak here as a parent, a primary school teacher and as a legislator in the Dáil. I wish to put on the record the views of a parent and also those of over 200,000 members of the Down's Syndrome Association of Ireland. I commend and thank the association and other groups, such as NAMHI, for their excellent work on behalf of children and adults with disabilities. They have made a massive contribution to Irish society and we do not thank or commend them enough. I also wish to reflect the views of other disability groups, particularly parents and those who work on the front line. The Bill has the potential to change Irish society and I urge the Minister to listen to the views of parents and the disability organisations. They matter in this debate and the represent our future.

Education for persons with learning disabilities fails to meet the needs of these people and continues to try to deliver education in the academic sense while missing the overall interpretation of education as laid down in the O'Donoghue and Sinnott judgments. The proposed Bill of April 2002 sought to continue the unjust and unfair approach of previous Administrations in not conferring unconditional enforceable rights on persons with learning disability, rights enjoyed by other pupils in the same classroom. This is the key issue.

For any education rights to be meaningfully implemented, I call on the Minister to ensure that the legislation provides for an automatic entitlement to a full-time special needs assistant on entry to every school. The present situation is at crisis level where many children have been refused special needs assistance. This must also be accompanied by a substantial increase in resource teaching hours for children with disabilities, children with Down's syndrome and other learning disabilities. While adequate resource teaching is offered to children with other learning disabilities, none are more serious than children with Down's syndrome who are left short. It means some children have a good service at their disposal while others have a reduced or no service. The Minister must ensure as a priority that all special needs assistants and resource teachers are obliged to undergo structured and relevant training courses.

The unequal distribution of capitation grants being made for pupils with learning disabilities in special and mainstream schools must be addressed. The Minister must give serious consideration to forming a Down's syndrome forum or task force of the kind already in existence for children with autism or dyslexia. It should examine, facilitate and provide a meaningful experience for inclusion for children. There must also be an independent and ongoing assessment of the individual needs of each child to ensure they are provided with an appropriate education, as is their constitutional right. This must not be dictated by a lack of resources.

The Bill is seriously flawed. It does not fully address the minimum requirements of those with disabilities, their parents and their families. It contains similar provisions and starts from the same base as the discredited Disabilities Bill, published days before Christmas 2001 by the then Minister of State at the Department of Justice, Equality and Law Reform.

I call on the Minister to amend the provisions of the Education Act 1998 in so far as they impinge on the Bill. An example is the need to amend the definition of support services, a crucial concept for children with Down's syndrome or other learning disabilities. The Government should also introduce truly rights based and not resource constrained legislation following proper consultation. It should do so as a lasting testament to the Special Olympics. I ask the Minister to seriously consider this.

I recognise the new economic circumstances that prevail and the need to prioritise special spending needs. However, for too long children and adults with learning disabilities have suffered from an educational system that has deliberately marginalised and discriminated against them and failed to address their needs. That is the bottom line. The only true protections that can be afforded them is through legally enforceable rights which are not so qualified or subject conditionally as to be meaningless.

I would like to quote Senator Harrison Williams, principal author of the Education for all Handicapped Children Act in the USA speaking in 1974. He stated as follows:

We must recognise our responsibility to provide education for all children [with disabilities] which meets their unique needs. The denial of right to education and to equal opportunity within this nation for handicapped children – whether it be outright exclusion from school, the failure to provide an education which meets the needs of a single handicapped child, or the refusal to recognise a handicapped child's right to grow – is a travesty of justice and a denial of equal protection under the law.

I have major concerns about the Bill's exclusion of people with dyslexia. The purpose of the Bill is to make detailed provisions in which the education of children with disabilities can be guaranteed as a right which is enforceable by law. While examining the Bill, I was shocked to find that the definition of "educational disability" has been worded to exclude children with dyslexia. This is not acceptable and must be changed. The definition in the Bill is an enduring physical, sensory, mental health or intellectual impairment. Dyslexia is not a physical, sensory, mental or intellectual impairment. It is a specific learning disability independent of intellectual and physical ability. The Minister must accept this reality and include these children in the Bill. The way forward is to use the definition in the Education Act 1998 which states that educational disability is a condition or malfunction which results in a person learning differently from a person without the condition or malfunction. This definition adequately covers the condition of dyslexia.

We must ensure that all children with different needs are covered in the Bill. After the wonderful experience of the Special Olympics the Minister has a duty in this regard. There are approximately 17,000 children with dyslexia in primary schools and approximately 14,000 in secondary level schools. This is an issue which must be addressed.

The serious failings in the Bill are the inappropriate power being given to the national council, whereby the aforementioned council may designate the school which the child with special educational needs is to attend and the lack of recognition in the Bill of children born with a recognisable disability, for example, Down's syndrome. They will still have to go through assessment and consultation procedures with other professions. My third concern relates to the failure to give unqualified fundamental, inalienable and non-conditional rights to persons with disabilities, their parents and families. My fourth concern relates to the lack of sanctions or appropriate enforcement regime. My next concern relates to the incessant emphasis on the qualifications of what limited rights are conferred in the Bill by reference to resources, and in certain cases, the explicit consent of the Minister for Finance in so far as is practicable or reasonable. This is totally unacceptable as a means whereby these rights can effectively be denied where unreasonable or impracticable.

My other concern is the inappropriate role conferred in certain instances on school principals – I am a former school principal – and the consequent lack of a truly independent assessment of the educational needs of our children which takes full and meaningful account of the views of parents. Another concern relates to the unreasonable distinction between children under three years of age and those over three, particularly in relation to the assessment of needs in respect of support services and the furnishing of these services.

I welcome the debate. I hope the Minister will listen to some of the ideas and take some of the amendments on board. Choice is a key factor when dealing with children with disabilities. Children with disabilities have different needs. Choice in education is the way forward and we must respect that view.

Mr. Crowe:

I will begin by welcoming the Bill, the first legislation brought before the House by the Minister for Education and Science and probably one of the most important he intends to bring. While broadly welcoming the Bill, or at least what the legislation is seeking to do, there are a number of serious flaws and problems in the detail, particularly in the area of definition, which need to be addressed. If it is to work the Bill must be centred around the greater good of the individual and based around the social model of disability. This is clearly not the case as the legislation stands.

I wish to thank the dozens of groups and individuals who made almost 50 submissions on the legislation to the Joint Committee on Education and Science, particularly those who made oral submissions. It was certainly a worthwhile effort as everyone involved learned from the process. I note from the Minister's speech that he is prepared to take on board a number of the recommendations and proposals made by the groups concerned. I hope he will take the proposals into account when the Bill reaches Committee Stage. The manner in which the Bill passes through the House will give us an indication of the way the forthcoming disabilities Bill will be treated.

One of the crucial elements of the Bill is the section on definitions. It is this section which has aroused a fair share of difficulties. While I welcome the fact that the legislation before us has changed the definition of a child by taking away that element of the legislation that excluded children under the age of three, the definition of "child" is still a long way from sufficient. The use of the term "child" in the first place is a curious one. Perhaps the title of the Bill should be the education for children with disability Bill 2003 as the entire concept of lifelong learning and adult education has been left out. Adult and third level education come under the remit of the Minister, yet they have been excluded from the legislation. What about the problems facing persons with disabilities in attending university and accessing adult literacy programmes? This legislation appears to suggest that once a student with special educational needs has done the leaving certificate, he or she is no longer in need of the assistance or supports required to get through primary and secondary school.

The age limit of 18 years is a barrier, not just in terms of adult and third level education but because it does not recognise that a student with disabilities might, for whatever reason, need to have more time to complete school than those without disabilities. They might enter the school cycle late or miss large amounts of class for medical and health reasons. Is the Minister being mindful of the 2001 Jamie Sinnott judgment in the definition he has adopted? I suggest that he refrain from making new definitions when they are not needed. The Education Act 1998 includes a definition of the term "student" as a person enrolled in a school or registered in a centre for education. I recommend that the term "child" be replaced, where appropriate, with the term "student" and that the Minister addresses the lack of measures to deal with education beyond the leaving certificate.

The Minister will be aware that many disability and education groups have serious difficulties with some of the other proposed definitions in the legislation, specifically the definition of a "child with special educational needs" and "educational disability". As it stands, this definition would exclude students with learning difficulties and other disorders. There has been a great deal of anger among dyslexia support groups, for example, at the decision to stop classifying dyslexia, as the Department has normally done, as a specific learning disability and exclude it from education legislation dealing with disability.

I also note from an all-Ireland perspective that special education legislation operating in the Six Counties refers to the special education needs of students with dyslexia. Disability legislation in this State should, where possible, be consistent. There is already a definition of disability in education legislation contained in the Education Act 1998. It is also used in the Employment Equality Act 1998 and the Equal Status Act 2000. The adoption of these definitions would ensure a standardised legal approach to the definition of disability that will include this broad span of learning disabilities. I ask the Minister to either amend or accept amendments on Committee Stage to change the definition of disability to one already widely accepted.

The Irish Wheelchair Association made the point that, as it stands in the legislation, the definition of educational disability would describe someone like the physicist, Stephen Hawking, as suffering from an educational disability. The barriers faced by people with physical disabilities are not the product of difficulties in learning but in accessing places of education or appropriate technology.

The social model of disability sees this not as a disability of the person concerned but as society disabling that person by not providing the appropriate facilities, by not allowing for their differences. A student in a wheelchair who cannot get into his or her school because it has steps is not disabled, rather the school is disabling them by not providing appropriate access. It is this social model of disability that must be embraced by the State from top to bottom and this legislation does not go far enough to address this issue.

I have a number of concerns about section 2 and the provisions relating to integrated education. I welcome the clear and unambiguous statement of support for integrated education in the first part of the section. While I accept it is not always in the best interest of the child concerned, paragraph (b) is vague and ill-defined – there is no information on who would make the crucial decision that the provision of education for the student with special needs in the classroom is impacting negatively on the learning of the other children with whom he or she is to be taught. Is the decision to be made by the teacher or the principal? How can we be sure that either of those will have the experience, skills and training in special education to make that determination? Is there room for the involvement of parents in this decision-making process, or even that of the other students in the class? How is “effective provision” defined?

I accept that for practical reasons some form of wording is needed to deal with the small number of cases that may arise which would be covered by this section. As it stands, it is unclear and open to widespread abuse. It could be used by staff who, struggling to cope on the few resources they have at present, might see the addition of a child with disabilities as an added burden. I do not suggest this kind of thinking would be widespread or tolerated. To protect the rights of all concerned I ask the Minister to clarify this part of the legislation to allow for consultation with parents and to expand on the detail of the decision-making process.

In section 3, the notion of an education plan is an extremely good one. However, I wish to make several points. There is no mention in the section of the student's teacher who would have most contact with the pupil. In large schools especially, the teacher would have more detailed knowledge of the student. While in practice the principal will, no doubt, have regard to the opinion of the teacher concerned, including this in legislation would improve the section.

Section 3(1) provides for the principal taking measures to address any "perceived failure of the standard education programme to meet the needs of the child". There is no mention of consultation with parents. If the principal has made the decision that a student of his or hers is not benefiting to the desired extent from the education programme generally applied in the school, he or she should not take measures to address this. Any such measures should be taken in consultation with the parents of the child concerned. The Explanatory Memorandum refers to the close involvement of parents in a child's education as a key element. As such, I ask the Minister to consider amending this section to provide for the principal to consult with parents.

In the same vein, parents should be given copies of the education plan as soon as it is developed and not "as soon as is practicable". I note the power to decide who is consulted in the preparation plan is left entirely in the hands of the principal. While there is a clear obligation to consult with the parents of the child and the special needs organiser, the parents have no power to request that someone with whom they may feel especially comfortable be involved in the creation of the plan. If the parents are represented and allowed reasonable access to bringing representations to the education plan creation process, they are less likely to have difficulties with it once it is created.

In speaking on the education plan, I wish to highlight the burdens this will add to the workload of school principals. The Bill sets out a detailed list of obligations to be fulfilled by the principal in particular for each individual. According to the INTO, three out of every four principals are teachers as well as principals. Today, principals must also be accountants, administrators, lawyers, social workers, fund-raisers and diplomats.

Principals are rightly concerned that the legislation will raise expectations and that they will be blamed if the added resources are not made available. The Minister said recently that he would provide 500 administrative posts to alleviate this burden. I would welcome more information about this in the Minister's response.

Time does not allow me to go into detail on further aspects of the Bill but my party colleagues will do so when they contribute to the debate.

Mr. Gogarty:

There are positive and negative aspects to the Education for Persons with Disabilities Bill 2003. It is not a huge overall improvement on its predecessor. Political opportunists might say that would not be difficult but let us give credit where credit is due. It is much different from last year's pre-election entity. It is regrettable that some of the provisions of the 2002 Bill were not implemented. Overall, the 2003 Bill is an improvement. Without the allocation of resources it is nothing more than a shiny, revamped and repackaged version of the 2002 Bill. It has an explanatory memorandum to die for. It uses new age terms such as holistic, whole child, goals-driven and education partners. Its very essence speaks the language of inclusivity, but it is not inclusive. There are no guarantees and no copperfastened provisions in the text of the proposed legislation.

The purpose of the Bill is to make detailed provision through which the education of children who have special educational needs as a result of disabilities can be guaranteed as a right enforceable in law. This right is already enshrined in the Constitution. I shall come to section 12 later. There are difficulties in allowing these rights to be implemented without the allocation of resources. That is the reason I say the Bill is not rights based, at least not to the extent that matters, because it is not resource guaranteed. It is more of wish list. We live in an Internet society and we are trying to get children in schools to use computers more. If one goes to Amazon, one always sees a wish list. In that context, the Bill could be described also as a wish list, because without the money to back it up that is all it will ever be. The provisions are welcome but they need tweaking. My colleague, Green Party justice spokesperson, Deputy Cuffe, will speak more about the rights-based legislation at a later date. Other Deputies and I will examine the Bill, section by section, at the Select Committee on Education and Science. Unlike Deputy O'Sullivan, I do not need half an hour to deal with the intricacies of the Bill.

Ms O'Sullivan:

The Deputy will have to join the Labour Party.

Mr. Gogarty:

Maybe the next time around. I wish to deal with some aspects of the Bill which will be debated on Committee Stage. If we are to aspire as a democratic society to equal citizenship we need to examine the education of our citizens, particularly those with special education needs. Section 1 contains the definitions of "child with special educational needs" and "educational disability". I will not repeat what other speakers have said but already we are running into difficulties because a huge range of educational disabilities are not covered under this definition. I welcome the Minister's statement about an amendment to include dyslexia. I hope it will be included in the wording of the Bill as many educational disabilities are not, such as all the autism spectrum disorders which need also to be clearly defined.

Sections 3, 4, 5 and 7 which concern parent and principal involvement are of concern to me and a number of others. In section 3 there is no provision for the child and the family to have access to independent opinion. There is no provision to allow parents to be involved in consultation straight away. Groups such as the Federation for Voluntary Bodies and parents associations welcome the sections but consider they are too weak. In terms of amendments to the plan, parental involvement should be crucial at every stage of the process. Some groups propose that the wording in all of these sections be amended to ensure that parents are identified as essential members of the team.

The principal, as Deputy Crowe said, is a busy person and in some cases does two jobs. Therefore it is difficult to expect the principal to have the time, let alone the knowledge or training, to carry out assessments. The key point in regard to section 5 is that a school principal does not necessarily have the qualifications or expertise to decide who needs assistance. Therefore, he or she would not be the appropriate person to determine who should make up the team. Sometimes the principal might be the primary person but that would depend on the principal's expertise and aptitude. The provisions in this context should be widened substantially.

Deputy Enright raised the issue of unmet resources as things stand. She mentioned NEPS and therapists. Section 4 places an obligation on the health board or the council to cause assessment to commence within three months. Is there any provision included in the Bill to ensure that happens? It should be written into it in order to make it a rights-based Bill. In practice, will the health boards be able to deliver on their commitments, as outlined in section 4? Someone alluded earlier to the Minister saying this Bill could be implemented within five years. However, the Minister for Health and Children, Deputy Martin, has spoken of ten or 15 years depending on the specialised staffing required. If it takes that long, the Bill will not work but will remain a wish list. The only way this Bill can be made wholly rights based is to include an obligation in the Act to ensure this provision is made.

Section 6 of the Bill refers to the provision of services. The National Federation of Voluntary Bodies has queries concerning the exact roles of the Departments of Health and Children, and Education and Science. It suggests the transfer of support services to the Department of Education and Science from the Department of Health and Children in order to facilitate better collaboration between staff. Speech and language therapists would therefore work as part of the education system rather than with the health boards. This would lead to a more effective, co-ordinated and team-based approach. If the services are driven by the education sector the Bill will work more effectively. If support staff in a school, or sharing schools, are employed by the Department of Education and Science, greater opportunities are created because therapy programmes can be integrated into the child's daily activities.

Another concern relates to section 9. The Down's syndrome group says this would create the ghettoisation of schools. Certain groups want their children to be integrated but other groups such as representative bodies for the deaf say they need special schools, which should be facilitated. Section 9 does not create any great distinction. The same is true of section 8 with regard to education plans. There is not enough emphasis on the individual needs of the student.

Section 12 was mentioned already and concerns resources and the involvement of the Minister for Finance. I ask that the wording of the Bill include measures which will allow money to be spent whether or not the budget is allocated to the Department of Education and Science. This would place an onus on the Minister for Finance to provide the funds.

I agree with other speakers that there has been insufficient reference to pre-school education in the Bill. It is also shocking and incomprehensible that access to education is cut off after the age of 18. We should be providing a life-long learning system. The Department of Health and Children should not have the responsibility for persons needing educational services after the age of 18 and this should be enshrined within the legislation.

Mr. Kelly:

In July 2003, the Minister for Edu cation and Science published the Education for Persons with Disabilities Bill. This Bill will provide a statutory guarantee of education services for people with a disability by providing a statutory framework within which the education of children and people who have special educational needs because of disabilities can be guaranteed as a right enforceable in law. The Bill sets out a range of services which must be provided, including assessments, individual education plans and support services. It also provides for a process of mediation and appeals where needs are not met and provides a central role for parents in the education of their children. The Bill establishes the National Council for Special Education through which the Bill, when enacted, will be given effect.

The Bill gives statutory force to a policy of integrated education. It provides that a child with special needs will be educated in an integrated setting unless this would not be in the best interests of the child or the effective provision of education for other children in the mainstream environment.

The drawing up of education plans tailored to meet the educational needs of children with special educational needs is a key provision of the Bill. Through the planning process, disabilities can be identified, needs assessed, goals decided upon and progress monitored. Where a school principal believes that a child is not benefiting from the regular education programme, he or she must take steps to meet the child's educational needs. If these measures do not meet the child's needs, the principal must consult with the parents and arrange for an assessment of the child. This must be carried out as soon as possible but not later than three months from the time the principal formed his or her opinion about the child. Where an assessment establishes that a child does have an educational disability, the principal must ensure an individual education plan is prepared within one month and that, in preparing the plan, the parents, special educational needs organiser and any other relevant person is consulted.

It is intended that a school would draw up the plan where the child's needs are relatively uncomplicated. The Bill provides for a formal planning process to be undertaken by the National Council for Special Education for children whose needs are more complex. In the case of a plan prepared by the council, a special educational needs organiser will convene a team of people which must include the child's parents and may also involve the child, the school principal and a psychologist. Where the plan focuses on educational needs, it must also have regard to any other needs identified in the child's assessment and must be consistent with those needs.

Education plans will be reviewed at regular intervals. Schools have the primary responsibility for this and must report on it to the child's parents and the council. If the special educational needs organiser takes the view that the child is significantly failing to achieve the goals in the plan, the team may be reconvened to review, and where necessary amend, the plan. In preparing or reviewing a plan, the school or special educational needs organiser must have regard to the educational provision which will be required for the child on becoming an adult and must take steps to enable the child to progress to further education and training. When this occurs in the context of a child who will turn 18 in the following year, an assessment must be made of how he or she has achieved his or her goals. If those goals have not been met, the effect of this on the child's development will be assessed and, where appropriate, measures will be included in the plan to address those effects. Parents may also seek a review of the plan in certain circumstances. If this request is denied they can appeal that decision to the council.

The Bill provides for a range of duties for schools in respect of children with special educational needs. These duties are additional to those already imposed on schools such as the equal status legislation and the Education Act. A school must respect the principle of integrated education, ensure that parents are consulted regarding their child's needs, co-operate with the council, ensure that teachers are aware of the special educational needs of the students and the importance of identifying children with those needs – and inculcate in students an awareness of the needs of people with disabilities. The council will have power to designate a school where a child with special educational needs is to attend and the school will be obliged to enrol the child. This is aimed at the practice in some schools of seeking to avoid the admission of children with educational disabilities.

The Bill provides that parents may appeal to an independent appeals board against any statement of description of their child's special educational needs or any other statement or description appearing in the education plan which they consider incorrect or inadequate to meet the child's special educational needs. It is likely, however, that many parents will wish to pursue a less formal approach to a review of decisions. For that reason the Bill provides that the appeals board must ensure that the parties to an appeal are assisted to reach agreement. On hearing an appeal, the board may give direction to the council or a school, which it must implement, or it may dismiss the appeal.

The Bill establishes the National Council for Special Education as the body charged with ensuring that the legislation as enacted will be given full effect. Its specific duties include the dissemination to schools and parents of information relating to best practice for the education of children with disabilities. the co-ordination of special education in conjunction with schools and health boards and planning for the integration of children with special needs in a mainstream setting. The NCSE will monitor progress of students with special educational needs and review the resources needed in this area. It will have responsibility to conduct research in the area of special education and provide relevant advice and information to the Minister. The council will also review the provision made by adults with disabilities to avail of higher adult and continuing education.

The Bill provides for the structure of the board and for a consultative forum which will be drawn from the education partners. The forum will provide advice to the council. The provision of appropriate education services to children with special needs crucially involves close co-operation and co-ordination of activities between education and health authorities. The health boards have a key role to play in providing support services such as the various therapies which the people concerned need and also because children and others with disabilities often reside in health board facilities or attend day care centres.

It is intended the Bill will resolve current difficulties regarding co-ordination. In the case of a school-going child, the council must provide him or her with the services identified in the education plan as being necessary for the child to participate in, and benefit from, education. If the child is not of school-going age this responsibility rests with the health board. If the council or health board believes that the other body can provide the services more effectively, it must inform the other body of this, and that body must then ensure that provision. If a dispute arises between the council and the health board this will be resolved by the appeals board. In addition, the council will be empowered to request a health board to take specific actions where it considers this to be necessary for the preparation or implementation on an adequate education plan, or necessarily more generally, to assist the council in carrying out its functions. Prior consultation with a health board is required before a request is made to it. A health board must comply with a request unless, in its view, the assistance requested is not necessary, taking the action would not be consistent with its functions or it would not be reasonable to comply, having regard to its resources. If the health board decides that it cannot comply with a request of the council, then it must state its reasons and the council may appeal the refusal to comply.

On hearing an appeal, the appeals board may direct the health board to comply with the request or it may dismiss the appeal. The purpose of the Bill is to provide a new framework for the assessment and provision of the needs of children with educational disabilities.

The Education for Persons with Disabilities Bill 2003 imposes a statutory duty on the Minister for Education and Science and the Minister for Health and Children to make resources available to schools for the provision of adequate and appropriate education to children with special educational needs. These resources are voted to the individual Departments by the Oireachtas, which is the normal procedure governing public finances and expenditure by Government Departments. In making policy determinations, the general principle that applies is that there is equitable treatment of all children in resource decision allocations. It is the object of the Bill that it will lead to the creation of an education system which gives to children with disabilities the same opportunity for development through education as is given to children who do not have disabilities.

The purpose of the Bill is to provide a statutory framework within which the education of children who have special educational needs can be guaranteed as a right enforceable in law. The definition of disability in section 1 is intentionally broad in order to be inconclusive. I welcome the fact that children with dyslexia will enjoy the protections conferred by this Bill, once it becomes law. I welcome the good work being done by the Longford dyslexia group which has lobbied me on numerous occasions and asked me to bring its views to the attention of the Minister, which I have done and will continue to do in the future.

The purpose of legislating for those who are deaf is to ensure that they have access to a range of services which must be provided, including assessments, individual education plans, and support services. The Department's capacity to respond to individual children with special needs was limited until a Government decision in October 1998 gave children assessed as having special educational needs in primary schools an automatic entitlement to an appropriate response. Since then the number of resource teachers in the primary system has increased from approximately 100 to over 2,300 and the number of special needs assistants has grown from approximately 300 to almost 5,500 full-time and part-time posts.

The nature and level of the educational response is based on the professionally assessed needs of each individual child. The Department's policy is to ensure the maximum possible integration of pupils with special needs into ordinary mainstream schools. Those who have been assessed as having special educational needs have access to a range of special support services, from special schools dedicated to particular disability groups, through special classes and units attached to ordinary schools, to placement on an integrated basis in ordinary schools with special back-up supports. The response will normally take the form of resource teacher or special needs assistant support, or both, depending on the level of need involved. In some cases, the level of special need involved may be such as to require placement in a special class attached to a mainstream school. The number of special classes has grown from 350 to more than 500 since 1998. Each such class is dedicated to a particular disability category and operates at a significantly reduced pupil-teacher ratio. Pupils attending these special classes also attract special increased rates of capitation funding.

In exceptional cases the Department considers an educational placement outside the country as being necessary. In general, where children have significant care needs these are met in an educational context through the special needs assistant service. The Minister is taking steps to ensure that service delivery is optimised. A key development in this regard has been the decision to establish the national council for special education, which will have a local area presence and will play a key role in the development and delivery of services for persons with special needs. It will also have a research and advisory role and will establish expert groups to address particular areas of special needs provision. It will also establish a consultative forum to facilitate inputs from the education partners and other interested parties.

The council has been established, a chief executive has been appointed and arrangements for the recruitment of staff are in hand. A further step will involve the development of a weighted system of allocations for special needs teaching resources, with effect from the 2004-2005 school year. Schools will receive an annual allocation based on the predicted incidence of special educational needs within different size school populations. Such a system would obviate the need for individual applications for resources in respect of individual pupils other than in the most exceptional circumstances. I commend the Bill to this House.

Mr. Ring:

I am glad to see this Bill before the House today. The real test of this Bill will come in about three years time. What does it mean for people with disability and special needs? Will they be better off when it is passed through the House, or will it give the Minister's powers to the National Council for Special Education? Is that what this Bill is about? Whatever Minister is in charge is responsible to this House and to the people. I am tired of seeing powers removed from this House every day and given to special agencies such as the National Roads Authority. If I table a question about someone with special needs who has a problem, I will be told that the Minister has no responsibility and it is a matter for the National Council for Special Education.

The Minister for Education and Science has total responsibility in this House and for people with disabilities. This year, particularly in September when the schools reopened, I heard one horror story after another. Many parents contacted me to express concern about what would happen to their children in the future. It was sad to see some of them genuinely upset and disturbed, wondering what would be done. Some of their children had not been assessed, others were told that there were no school places for them, and they saw no future for their children. I hope this Bill will remedy this in order that I can tell these parents that their children have a future. The biggest single challenge for this House and the country is whether we will commit ourselves to the provision of resources for services for people with disabilities? I hope that this House, this Government, and its successor, will have the courage to put the necessary resources and commitment in place, particularly for children with disabilities. If our society cannot support children with disabilities and their families who go through difficult times, it is a very poor society.

This Bill has many fine qualities but it lacks a real financial commitment. It is all about money and resources, putting resource teachers and special needs assistants in place. The Government must be committed to this. I am committed to it and I hope that every Member of this House is too because for far too long people with disabilities were treated as second class citizens. I hope that when this Bill is passed, the necessary resources will be put in place for these children and their parents, who have suffered so much. I am hoping that its provisions will be extended on Committee Stage.

I compliment the parents who have shown great love and commitment and, in some cases, have tried to educate their loved ones themselves with their other family members. They have given these children loyal support when the State has failed to deal with the problem of disability. I hope the required resources will be put in place following the forthcoming budget and that there will be a major improvement in services, in school places, the teaching profession, and whatever else is needed to ensure that next year people with disabilities can confirm the Bill is working. If that happens, I will be the first to congratulate the Minister, whoever he or she may be. I welcome the provision in the Bill for an appeals mechanism. Sometimes parents become frustrated with decisions made for them. Who is in a better position than the mothers and fathers of children with special needs to know what those children are capable of doing, having been with them 24 hours a day, seven days a week, 52 weeks of the year? I am glad there will be a mechanism to enable them to make an appeal to an independent body which will listen to them. It is a fundamental requirement that these people be heard and they are entitled to have their concerns and fears taken on board.

In the context of special needs, the Government gave major commitments before the last general election, many of which, I regret to say, were broken. Last September many parents were disturbed and upset to find that the personnel and resources which were to be put in place had not been provided. I hope this Bill will deal with that situation and that further cases will not have to be brought to the courts by the parents concerned. Such matters should not have to be settled in the courts. It is the responsibility of this House to provide for the necessary personnel and financial resources.

It is not acceptable that parents, including those of children with autism, should have to engage in fundraising activities to enable their loved ones to be brought to America or elsewhere, in the absence of the required facilities in this country. I hope those days are over and that the Department of Education and Science will ensure that every child in this State, particularly those with disability, will be treated equally, in accordance with the Constitution. They must be given every possible help, support and facility which can be put in place for them. Money must not be an obstacle. Money can be found for whatever crisis arises in this country. If it is necessary to raid the funds of other Departments to enable the resources to be put in place, I do not believe anybody will object to allowing a child with a disability to have an opportunity of education in a mainstream school in a similar manner to other children.

There should be no repetition of past experience whereby school principals were placed in the position of being unable to provide a place for a child due to lack of staff and resources. I hope those days are over. It is most unfair that principals should have to make such decisions, perhaps in cases where children from the same family are already attending the school in question. Those decisions should be taken out of the hands of principals, who already have a difficult task without that imposition. I expect that such decisions will, in future, be a matter for the National Council for Special Education, in terms of informing schools as to the resources being put in place. I hope that happens without delay.

I sincerely hope this Bill will work. Most public representatives will know of families who have children with some disability or special need and will be aware of the difficulties which such families experience in terms of the financial cost of trying to do what is best for their children. I hope the State can respond effectively, that this Bill will work and that it is not just an exercise in diverting responsibility from the Minister for Education and Science. I hope it will deal with the position of special needs children and those for whom we have neglected to make provision since the foundation of the State. I hope their time has now come. No longer should people in wheelchairs have to lobby for their rights outside the gates of these Houses, in all weathers. They should now be in a position to make their case to the new board and I hope their rights will be protected in this Bill.

My party colleague, Deputy Enright, has pointed out some difficulties in the Bill, which she intends to address on Committee Stage. This is not a matter of politics as between Fianna Fáil, Fine Gael, the Labour Party, or Sinn Féin. It is about a section of society which needs protection. It involves people who, in some cases, are unable to fight for their rights. As public representatives, it is our duty to take those concerns on board on Committee Stage of this Bill and do what is right for the people involved. I ask the Minister and his Department not to regard this as a money issue but, rather, to approach it on the basis of what is right for children and others with disabilities. I hope we will have the courage and commit ment to ensure that the funding and resources are put in place.

This House is very good at providing legislation and giving directions, but the State is the worst provider in terms of implementing its legislation by putting the necessary personnel and financial resources in place. I wish to see this Bill working effectively so that those who stand to gain from it can say "At last, there is something there for us; the time has come when we are properly represented in the Houses of Parliament." I hope the Bill works for these people.

Mr. Dennehy:

I join with other speakers in welcoming this Bill. As Deputy Ring and others have said, it is crucially important legislation. I will not say it is long overdue because the Minister has been working on it for about a year and a half. That time was well used in terms of extensive consultation with many of the groups to which Deputy Ring referred. As the Minister stated in his opening address, provision for those with special needs is already established in legislation such as the Equal Status Act and the Education Act 1998. Nevertheless, this Bill was badly needed to spell out very clearly the finer points as to what will be provided in each category and facility. For instance, one of the first and most important steps is the assessment procedure to evaluate the needs of each pupil. Obviously, the evaluation process can only be effective if the necessary personnel are in place to implement it. That is an area in which we have been remiss in the past.

The extent to which parents are involved almost represents a new strategy. Such involvement from the very beginning is, of course, crucially important. The requirement for schools to provide an education plan will eliminate the ad hoc approach which has applied in past years, including the discretion which was given to schools to avoid accepting pupils, even from within their own catchment area. Deputy Ring referred to a possible lack of facilities, but it often involves somewhat more than that – there may be a wish to avoid certain difficulties, as perceived by the school concerned. I am glad that option is being specifically removed.

The establishment of the National Council for Special Education on a statutory basis is a very important step. Deputy Ring stated that this is about resources, although he backed off then by saying it is not about money – a contradiction. It is about the provision of resources and I am proud of the difference between the situation as it exists now compared to the situation before 1998, although a huge amount remains to be done.

No one was listening to those with disabilities until they formed lobby groups, got organised and brought their campaign to the Oireachtas. The multiplicity of voices represented should be heard and the lobby groups welcomed. Anyone with a special need is entitled to come to make his or her case and to present that need at first hand.

For those of us who worked for years as advocates for those requiring special training or education facilities, the major stumbling block was the lack of clarity on who would provide the service. There was an ongoing battle between the Departments of Health and Children and Education and Science about which was responsible for provision of facilities. Unfortunately, the battle seemed to be based on which Department could avoid providing the service rather than which could take a lead.

The Paul O'Donoghue case brought clarity to the issue and established that the Department of Education and Science has a binding obligation to provide for the needs of each pupil and the judgment in the appeal of the case helped to establish the right fully. There have been cases since to clear up aspects of the ruling for continuing education. This Bill, when enacted, should make it crystal clear what is required of the State and Departments in all areas of special education.

The Minister's comments on the breakdown of responsibility between the Department of Health and Children and the Department of Education and Science concerned me but I am glad the council will have the right to instruct them to provide a specific service in a given area and to legislate that a health board must provide a particular service. That will bring the issue back to the decision makers because health boards have had discretion in service provision until now. I was a member of a health board for 25 years and I have seen people take the easy option and those with special educational needs were often left behind because they were a minority group.

I compliment the Minister for introducing this Bill. There was a wide-ranging discussion of the legislation that is reflected in its contents. It is not often that a Minister confesses in his speech on Second Stage that there may be other issues to be dealt with and that he is open to advice on them. I will point out some areas that may need attention or that might cause difficulty for my constituents or others.

I also pay tribute to those who spent years working, mainly in a voluntary capacity, to highlight the specific needs of pupils in different categories. Individual requirements will vary widely and those people have helped us to focus our ideas. The question of mainstream education access will always arise and thus it is critical that parents are involved and that they are not dictated to that a child must enter mainstream education.

As a member of the Southern Health Board, I have worked with groups such as the Cork Autistic Association, Cork Parents and Friends of the Mentally Handicapped and others in Cork and Kerry. The Minister's directive to have schools inform their mainstream pupils about the special needs of some pupils was anticipated by the Cork Mental Health Association, which for 30 years has run an interschool debating competition on the topic of mental health and related issues. The association has done a magnificent job and has included every school in Cork, enlightening tens of thousands of pupils about special needs and how to avoid discriminating against those with them. I have attended many of those debates, particularly as chairman of the health board or Lord Mayor of the city, and I presented some of the awards. It was always an eye opener for me to attend the debates because the students carried out research and came up with information that was new even to those in the Cork Mental Health Association, many of whom are employees of the Southern Health Board.

Those voluntary groups were often pioneers in the campaign for the rights of those with special needs. In many instances they were fighting the establishment, especially when there was ignorance about the possibilities and benefits of special education and care. People are aware of those benefits now but they were not 20 years ago. There is still, however, a degree of ignorance about some special needs and the primary reason is that in many cases the needs are only now being identified or people are only now being diagnosed. Speakers have referred to dyslexia and the Minister stated in his opening speech that he is seeking advice on the matter, but there are other conditions that must be addressed. We must ensure the council will be prepared to respond rapidly to needs that arise such as dyspraxia or DCD. I was not aware of dyspraxia until eight months ago; it was pointed out to me when I attended meetings of the Cork Mental Health Association that there is a huge need for linkage between the Departments of Health and Children and Education and Science in this area.

No condition is clearer than dyspraxia. The only pilot medical unit for the treatment of dyspraxia is based in St. Finbar's Hospital in Cork and it has been a success so far. The staff are small in number but do an excellent job. The major factor in that success is the involvement of all the children and parents through the Dyspraxia association. The good work of the parents of pupils who suffer from this condition must be harnessed and put to the best possible use. These volunteers are happy to meet parents and pupils. They already have a group in Galway, but they are happy to liaise with other groups around the country. We must harness and utilise such organisations as we have in other cases.

The work done at St. Finbarr's Hospital will not be of maximum benefit if the schools, and specifically the teachers involved, are not fully aware of what is involved and required to fully educate the child. With this organisation, a psychologist will go to the schools and outline to the teachers what is required. The teacher will often respond that they noted such and such happening, but put it down to the child being awkward or awake at night. When it is explained to them what is needed, most teachers respond in a positive fashion. They need to be educated, as we all do, on the needs of these pupils.

I will sound a word of caution to the Minister. It is only recently that we are catching up on the diagnosis of ADD and other conditions. A couple of years ago, we institutionalised people who suffered from those conditions. If today we examined the prison population, we would find many prisoners with such mental health conditions. In our own families, we would have described some members as "hyper" or "awkward" and never thought of it as a mental condition or even a health issue. The Americans are a few years ahead of us in the identification of these conditions. However, we now must be geared to such advances in diagnosis. The Minister for Education and Science, Deputy Dempsey, is to be complimented on his anticipation of a wider variation of needs in this area and on putting structures in place.

Groups representing those with special needs have a tendency to tell us what the politicians intend to do rather than what they have done already. I understand the sentiment but, in the interest of everyone involved, it should be outlined where we have come from and what we are doing to add to the existing facilities.

The Minister gave details of the massive changes that have occurred since 1998. I, as a Government Deputy, am particularly proud of those figures. It is easy to talk the talk in the House, but to get the work done is a different matter. I have many years' experience at health board and Dáil level of acting as an advocate for special needs groups. I have sponsored many proposals at both levels. Invariably, the impediment to success was lack of finance and resources. It came down to the wherewithal to do the job. As late as 1996, I was involved in a campaign in Cork city for escorts on the buses in the schools transport service. The campaign commenced after an allegation of serious assault on one bus. The rainbow-hued Government of the time issued a point-blank refusal for this provision. However, the Minister has stated that there is now an escort on every such bus. The last time I inquired about the cost, it was €4.4 million.

There are statistics and lies but one cannot argue with facts. At the beginning of 1998, there were 104 special resource teachers supporting primary school pupils with special needs. Currently, there are more than 2,500. That is walking the walk as well as talking the talk. We, on this side of the House, take the credit for this. There is much more to be done, as we said in our election posters and we accept—

Ms O'Sullivan:

The Tánaiste was robbing it from them last week.

Mr. Dennehy:

We are still working away on it. I can give her a few more pre-1997 figures but she was not part of the rainbow colours then—

Mr. M. Smith:

Deputy Dennehy, we are not supposed to embarrass them like that.

Ms O'Sullivan:

We are well able to give it back.

Mr. Dennehy:

We have all made representations on special needs assistants. Deputy O'Sullivan, more than others, is vocal and consistent on the matter. However, the number of full-time special needs assistants has increased from 300 to 3,800, with a further 1,000 employed part-time. That is real and essential progress. The number of remedial teachers in learning support has increased to 1,531 with part-time tuition for services with children with special needs. These are big figures with big expenditure. I agree with Deputy Ring that when it comes to funding for special needs versus funding for another project, most people will go with the former.

The special schools transport system was a service about which I had concerns. When I was involved in the campaign, I got a blank refusal from the Department. I recall one Fine Gael Deputy, a Minister of State at the time, giving excuses on a radio programme on the issue when I was making an appeal for funding. We have now resolved the matter.

The Minister, again in a progressive move of which I am proud, turned the sod on a school for therapies in NUI Cork only last week. Each of us is aware of the shortage of speech therapists and so on. The only way to deal with it is by producing more graduates in speech, physical and other therapies. The role of the health boards vis-à-vis the Department of Education and Science and the Department of Health and Children is of crucial importance.

This Bill has my total support. I welcome it unreservedly and commend it to the House.

Mr. Naughten:

I welcome the opportunity to speak on this Bill. However, I wish to take up the point Deputy Dennehy raised on escorts on special school buses. A considerable number of the school transport fleet vehicles for those with disabilities do not have escorts. Many of the schools cannot recruit escorts for these services because the Department is paying peanuts.

The Joint Oireachtas Committee on Education and Science pursued the then Minister of State at the Department of Education and Science, Deputy O'Dea, until sanction and approval was given for escorts and harnesses on special school buses. As Deputy Dennehy has such influence with the Minister for Education and Science, he might ensure that the Joint Oireachtas Committee on Education and Science 1999 report on school transport be properly implemented by the Department. In the past, some pupils with physical disabilities attended schools with no facilities for the disabled. However, the school transport service would only bring them to the nearest school. This scenario effectively negated students' rights to the special schools transport service. Thanks to the report I produced on behalf of the all-party Oireachtas committee, the Minister of State, Deputy O'Dea, implemented that measure.

Mr. Dennehy:

The cash came from the one source.

Mr. Naughten:

I like the historical revisionism that is going on in the House today. Maybe Deputy Dennehy might use his good offices to ensure that report does not gather dust and is implemented before fatalities occur as a result of the current school transport fleet. Deputy Dennehy might ensure that sufficient resources are provided so that we can pay escorts to ensure the policy proposed by the Department of Education and Science is implemented and that every child being brought to a special educational school by the school transport system would have an escort, which is not the case today. Both the Minister and Deputy Dennehy have been inaccurate in what they have told the House today.

For generations a set of physical and intellectual characteristics outside the norm denied countless Irish men and women their basic civil and human rights. Those characteristics established more what they could not do than what they could do. Thankfully in today's society discrimination against those who are different is reducing. This is thanks to equality legislation, the vast majority of which is derived from the EU and the huge information and rights campaign conducted by disabilities' lobbies, which resulted in publications like the 1996 report of the Commission on the Status of People with Disabilities.

People with disabilities are only demanding their basic rights to adequate health care, access to the necessary educational and other facilities and, above all, equality of treatment. The Government has equivocated on this matter for far too long. This is the European Year of People with Disabilities and earlier this year Ireland hosted the Special Olympics World Summer Games, which was a showcase of excellence, ability and extraordinary talent. We must ensure this was not a once-off flagship occasion, which made us feel good about ourselves. It must herald a new era of inclusiveness in sport, leisure and all other aspects of life involving people with disabilities.

In the Taoiseach's address at the Special Olympics World Summer Games, he stated that watching the athletes compete left many of us feel personally humbled by their courage, spirit and sheer enjoyment in using skills they have learnt and developed. This is the leader of a Government that does not want to see these same children learn in equality with their peers. Despite the euphoria surrounding the Special Olympics World Summer Games, the allocation of special needs assistants in schools has been cut back. While the Minister for Education and Science was announcing €42 million for students from disadvantaged backgrounds, he was also instructing his Department to make cutbacks to the most vulnerable area of education by reinterpreting the criteria for the allocation of special needs assistants.

A protest on a number of issues that affect people with disabilities within the education system will take place next week at the special needs section of the Department of Education and Science in Athlone. One third of special needs assistants have been cut and there are plans to cut a further one third. Resource teaching hours have been cut, as have home tuition grants. Funding to special needs schools and special needs classes have been cut. Funding for special education for adults has been cut completely. The Minister for Education and Science is considering reintroducing college fees through the back door. He has taken resources from special education and reallocated them into third level education. While the Minister looks as if he is addressing the issues of disadvantage, those who are most disadvantaged in our society are footing the bill for this.

This Bill gives us the opportunity to debate special educational issues. Sadly, having heard the speeches of the Minister and others, including my constituency colleague, Deputy Kelly, I have heard nothing but "ifs", "buts", "maybes" and "subject to the resources being available". This is not rights-based legislation. This is legislation on the basis of resources only being provided at the whim of the Minister for Finance. Like every other child in the State, those with disabilities should have a basic right to education, but this legislation will not provide it. Everything is solely dependent on the resources of the Minister for Finance. The Government has a track record of taking money from special needs and putting it into another area of education. It is evident what is the priority of the Government on this issue.

I would like to address a number of points the Minister made in his speech. He stated that children with special needs attending mainstream schools might require access to special equipment to assist them in their education. However, they do not get that equipment at present. Children with special needs in mainstream education are being disadvantaged because the basic resources are not being made available to them. The principals of all schools with a child with special needs have to fight tooth and nail for resources for such children. We do not even have equality of treatment at present between children with disabilities going into the mainstream educational system and those going into special schools. Nothing in this legislation encourages me to believe that will change. Those children who want to go into the integrated system, which the Minister promoted during his speech, are not being given the same opportunities and access to the same resources as children in special needs schools.

The Minister also said the Bill provides strict time limits on the assessments and educational plans. If this happens, it will be the first time in the history of the State that a time limit has been implemented. This has never happened in any area, including An Bord Pleanála, which is supposed to have strict time limits. In 1996 an Act concerning payments to farmers was passed, whose deadlines were not adhered to. I do not believe the strict guidelines and time limits in this case will be adhered to. It will be used as an excuse not to commit the resources for particular children.

In his speech the Minister said:

An assessment arranged by a principal must be carried out as soon as possible, but no later than three months from the time the principal formed his or her opinion about the child. Where an assessment establishes that a child has an educational disability, the principal must ensure an individual education plan is prepared within one month.

How long will it take a principal to form an opinion? If a child starts school in September and the principal only forms an opinion in June, it will be the following September or October before anything is put in place because everything closes down during the summer months. It could easily take a further 12 months before resources are provided for such a child, which is two years after the child first enters the school.

The vast majority of principals are exceptional people and very proactive in addressing issues such as this.

There is a very small minority, but a minority nonetheless, of teachers and principals who do not take this proactive approach. If one was waiting for them to form an opinion the child could go through the education system without any resources being put in place and be completely ignored. In many instances when parents of children with dyslexia have brought this to the attention of some teachers, the reaction has been that the parent is merely imagining that the child has difficulty with reading skills. The problem is being brushed under the carpet. I do not think the element of strict criteria in this legislation will ensure that the rights of children are protected.

The Minister also spoke about section 12 which creates a statutory duty on the Minister for Education and Science and the Minister for Health and Children to make those resources available. However, all spending is subject to the availability of resources and the agreement of the Minister for Finance. The Minister says this is a political reality. The reality is that under the Constitution every child must be treated equally and must be given the opportunity to receive an education and have the same entitlement to that education whether he or she is an intellectually disabled child, a child with a physical disability or an able-bodied child. It should not make any difference but yet in this case it is subject to the Minister for Finance loosening the purse strings. It puts commitment on the long finger.

There is a turf war between the Department of Education and Science and the Department of Health and Children. As a public representative the one query I dread is when a parent of a disabled child comes to me looking for basic resources. I know I am guaranteed at least a 12-month battle just to get something very basic for them. The Department of Education and Science will say it is not its responsibility. The Department of Health and Children says it is the responsibility of the health board. The health board says it does not have the resources and refers the inquiry back to the Department of Health and Children who in turn passes it on again. One is sent from Billy to Jack and everyone seems to be passing the buck.

Even if it is a health issue and if one happens to live in a constituency such as mine which borders on a number of health board areas, then the health boards pass the buck.

Debate adjourned.

Dáil Éireann debate - Thursday, 23 Oct 2003

Education for Persons with Disabilities Bill 2003: Second Stage.

Dáil Éireann debate -
Thursday, 23 Oct 2003