Education for Persons with Disabilities Bill, 2002: Committee Stage (Resumed).

SECTION 1.
Debate resumed on amendment No. 1:
In page 4, subsection (1), lines 6 and 7, to delete "is unable to benefit from an ordinary school programme" and substitute "needs more than the ordinary school programme".
–(Senator O'Toole).

On a point of order, why did the Minister mislead the House at 5.50 p.m. this evening? I asked him very clearly then if this Bill would be taken in the other House tomorrow. The Minister told me it would be. I said: "So it will be in the other House tomorrow." He said: "That is my understanding." It is not being taken tomorrow. It has not been requested. The Whip's office told me a short time ago that it has not been requested and that it is not on the Order of Business for tomorrow in the other House. The Opposition Whips are not aware of it. I spoke to Deputy O'Malley from the Government side and he is not aware of its being taken tomorrow. The Minister deliberately misled this House. Could he please tell us why he did so?

I refute that absolutely. The Senator is trying to filibuster and stop this legislation going through.

Will it be taken tomorrow?

That is all.

Will it be taken tomorrow? Will the Minister answer a straight question?

I will go back to what I said. I said it is my understanding that it will be taken tomorrow. Senator Manning spoke to someone and I spoke to the Whip.

Can the Minister give me a categorical guarantee—

I will not give the Senator a categorical anything. He is telling me I misled the House and I did not. He is trying to make an allegation which is false and he should withdraw it.

I will not withdraw it.

Senator Manning has been in that mode ever since this Bill was initiated because he is trying to get cheap publicity out of it. That is all. I told him it was "my understanding" and I got that understanding from speaking to the Whip. The Senator knows as well I do that the position in respect of business is quite fluid. I said I wanted the Bill, at a minimum, to go through Second Stage so we could proceed to Committee Stage, with the opportunity to come back on the day the House sits again to complete it.

The Minister is being himself.

I am not—

The Minister is telling a lie to the House—

I am not telling any lie.

—and I will not stand for it. The Minister came in and told us the Bill would be taken tomorrow. I have spoken to the Whip—

Senator Manning—

It is not on the Order Paper for tomorrow.

Senator Manning—

It will not be taken tomorrow and the Minister has come in and deliberately misled this House.

Senator Manning, will you please bear with me for a minute?

Why the Minister is doing it, I do not know.

Senator Manning—

He has tried to accuse us of seeking publicity in this matter.

Senator Manning, will you please bear with me for one moment?

I will, for you.

Thank you. I have allowed you to raise the point of order. The Minister has responded to the point of order—

But he has not—

The business of the other House has nothing to do with this House. What will or will not be taken in the other House is not a matter for this House.

In this case, it is.

Therefore, I will not allow any further debate on the point that has been raised. I will proceed with Committee Stage.

With respect – the Cathaoirleach knows I have respect for him and this House – we found ourselves in a set of circumstances in which we were asked to take a Bill under undue pressure without any attempt at consultation because we were told it would be taken in the other House before the end of session. I asked the Minister specifically at 5.50 p.m. this evening. He told me it would be in the other House tomorrow—

He said that was his "understanding".

The Minister is either incompetent or disingenuous. The Whips are not aware of it. The Whips of my party are not aware of it and the Whips of the Progressive Democrats are not aware of it – I spoke to Deputy O'Malley a short time ago. I was told categorically by the Whip's office that no request had been made to have this tomorrow. What game is the Minister playing?

The Senator very conveniently left out the Whip of my party, to whom I spoke.

I did not. We spoke to the Minister's Whip's office—

I said—

—and we were told that no request had been made.

I said I spoke to my Whip, not to an office or any other person. I spoke to my Whip, so that is the position.

What did he tell the Minister?

What did he tell the Minister?

He said he will do his best to take the Bill tomorrow, yes.

Do his best?

He will of course. What else does he do any day? However, it is a matter for the other House.

The Minister is disingenuous—

I am not.

—which is a nice word for something else.

The Minister is disingenuous in this regard. He is playing fast and loose with the facts.

Please, Senator Manning, we cannot become involved in the business of the other House.

I am sorry, a Chathaoirligh.

Allow me a further few seconds, Senator Manning. This Bill was ordered this morning on the Order of Business and it was agreed that Committee Stage would be taken in this House today.

Could I intervene? As a Whip, we said that we would accommodate in every way possible the work of the House. In discussing this, we sought certain understandings. Pressure of business from the other House put pressure on here. To ensure co-operation among the Whips, despite the Houses being separate entities, a Bill's movement from one House to another is taken into consideration to accommodate people. That is well known.

This is a significant issue. If the Bill will not be going to the other House tomorrow, the rush is not necessary and people could be given time to deal with Committee Stage and its problems in a decent way. That is the significance of the matter.

The Chair is bound by the decision of this House on the Order of Business this morning. That decision was that Committee Stage of this Bill would be taken in this House today and I must now proceed with Committee Stage.

I am sorry, but we have been misled very seriously on this matter. We were informed that this was part of the legislation that had to be got through. The problem is that the legislation will get lost—

That is a matter for the other House.

Then why did the Minister tell me that he understood it would be taken tomorrow when his own Whip's office said no request has been made? Deputy O'Malley told me specifically that no request had been made. The Minister has come in with weasel words and has said that, in so far as is possible, it will be taken tomorrow. He knows full well that it will not be taken tomorrow. Can he be truthful in the matter?

Senator Manning, please.

That is not true. A request was made, and whoever told the Senator otherwise is wrong.

The Whip's office said "No".

I do not care what it said. If the Chief Whip was here, he could tell you himself. I spoke to him this morning.

The Whip's office said categorically that no request has been made.

This is not relevant.

The Senator is trying to say I am a liar and he should withdraw it.

I did not say the Minister is a liar.

He said I told a lie. He should withdraw it.

I said he has not told the truth.

In the other House a Deputy would not even do that, and if he did, he would withdraw it straight away. I would have thought the Seanad would have had a little more dignity.

Whatever about dignity, I did not accuse the Minister of telling a lie, but of telling us something that was not true. That is all.

The greatest dignity is in the truth.

Order please, I am proceeding with Committee Stage of—

We cannot agree to continue with this because we have not been told. The Minister has misled this House.

Senator Manning, I do not think there is any basis for that statement in that the Minister has stated to this House that it is his understanding that this Bill will be taken in the other House tomorrow. This Bill may very well be taken in the other House tomorrow. We do not know—

The Minister has told us that it is his understanding, but there is no factual basis to his understanding. I have been told—

That is a matter for the Government Whip.

Either the Minister tells the truth here or he does not.

That is a matter for the Government Whip.

As Senator O'Toole said, there is a very significant point to be made. Getting away from the personalities and the rows, the point must be made that every interest group involved with this Bill wants time to consider it and look at its implications. For some strange, perverse reason, the Minister wants to rush it through here tonight. It will not be in the Statute Book before the election, so why does he not do the sensible thing—

Senator Manning, it was decided by this House this morning that Committee Stage of this Bill would be taken in the House today. I am bound by that order of the House and I must proceed with Committee Stage. We are on amendment No. 1 to section 1. The amendment has been moved and I call on the Minister to reply to the debate thereon.

Notice taken that 12 Members were not present; House counted and 12 Members being present,

The focus of the definition in the Bill of a child with special educational needs is on the fact that the ordinary school programme is not sufficient for such a child. Something else is required. There may be a need for him or her to attend special classes, to avail of special education services, or both. The definition has been framed in this way to emphasise that a child with special needs will have a right to avail of these extra resources which my Department has made and will continue to make available.

Senator Henry raised the issue of behavioural problems, which are included if they are assessed needs. For this reason, the definition, as drafted, is sufficient and encompasses what is envisaged in the Bill.

The issue is the use of the English language. What matters is not what the Minister intends the definition to mean but what it actually means. Section 1 defines a child with special educational needs as a child who "is unable to benefit from an ordinary school programme." Whatever the intention, that means one thing only, that a child gets no benefit whatsoever. No such child exists, every child will get some benefit, even if it is only learning to distinguish basic numbers and colours. This is important because at some stage some smart lawyer is going to argue that a particular child does not fit the description of a child with special educational needs because, even though he or she has a reading age ten years behind that of his or her peers or is moderately or even severely mentally handicapped, it can be proved that he or she has learned basic addition, how to make his or her way to the toilet or how to lift a spoon.

We are talking about a child who in the first place is in an ordinary school, and trying to determine whether he or she has special needs. There will be no child in a school, however, who will not have obtained some benefit from it. The Minister talked about a situation where a school programme is "not sufficient" and something else is required. That is exactly what I agree with, but the definition in section 1 does not meet it, it does quite the opposite. My amendment would redress this by substituting the phrase "needs more than an ordinary school programme."

Senator Ormonde asked whether we would then have to define the word "more". That is what the education plan is, the plan is designed to ascertain the additional needs of a child. The issue is very simple, the potential for a legal expert to interpret the word "benefit" literally. If a child gets any benefit at all, it means that he or she cannot be defined as a child with special educational needs. There is no argument about this, unless I cannot read English.

I have an alternative definition.

I am delighted the Minister has shown flexibility and come up with an alternative. Senator O'Toole has made a good case. It is also the case that the current wording defines a child negatively. Senator O'Toole, who is a teacher, is seeing the positive aspect. In addition to the points he has made, I suggest it would be much better that a child be seen in this positive light.

The alternative wording I propose is: "In page 4, line 7, after "programme" to insert "to the extent that a child without such attributes can so benefit".

At what stage does the Minister intend to introduce that amendment?

I am introducing it now orally.

What is an oral amendment?

I suggest the Minister introduce it as a formal amendment on Report Stage.

I am happy the Minister has taken the amendment on board. As matters stand, the Bill states a child with special educational needs is one who is unable to benefit from an ordinary school programme, among other things. There is no such child, all children will benefit to some extent, no matter what their level of disability. The Minister is suggesting that on Report Stage he will propose to substitute the words "to the extent that a child without such attributes would benefit". I am happy that he would say that a child who, because of their disability—

Without such attributes.

To the extent that the child without such attributes would benefit. I am happy to accept that wording on Report Stage. I thank the Minister. This means that no smart lawyers can determine that any particular child does not have special educational needs. That is crucial because subsection (1) would effectively have undermined the entire Bill. It is the first definition in it and the Minister's proposal is a good first step in improving this Bill.

Amendment, by leave, withdrawn.
Question proposed: "That section 1 stand part of the Bill."

There are many terms included in this section. It defines ‘disability', ‘assessment', ‘health board', ‘Minister', ‘parent', ‘school' and many other terms as they relate to this Bill. The Minister should have included health and safety in the Bill. There does not seem to be any definition of that term as it is laid down in statute. Over the last couple of years, we have read and heard much about the issue of health and safety and it should form an important part of the Bill.

Senator Burke is right. Health and safety is laid down separately in statute and it will apply to this Bill under the Health and Safety Acts.

Question put and agreed to.
SECTION 2.

Amendments Nos. 1a and 7a are related and may be discussed together, by agreement.

I move amendment No. 1a:

In page 5, paragraph (b), line 37, after “of”, to insert “adequate and”.

I ask the Minister to accept my proposal.

I accept the Senator's amendment and will include it on Report Stage.

Amendment agreed to.
Question proposed: "That section 2, as amended, stand part of the Bill."

The council must ensure that the education of a child with special needs takes place alongside the education of children who do not have such needs. This is usually described as integrated education or inclusion. I am pleased to note that the Minister has not used these words in the Bill because words go out of fashion so quickly in this territory.

Children with a disability must be educated in the ordinary classroom, provided that certain conditions are met. These include the needs of the child, the wishes of his or her parents, the efficient provision of an education for those children alongside whom the child will be educated and the efficient use of resources. The needs of the child are particularly important. Very often, a parent may prefer that their child should attend the local school, despite their learning difficulties and the fact that they may never reach the level of ordinary children. That is understandable. However, this choice would be wrong if the special needs assessment of the child indicated that he or she would do better were they enrolled at a special needs school. It is important the child is educated in the establishment wherein they can achieve their potential. Integrated education should always be based on what is best for the child.

I agree with the Senator. That is the specific purpose of the section, which provides that the education of a child with special needs shall occur in special classes, separate schools, or other settings removed from the ordi nary environment only when that represents the best educational option for the child.

I also agree with Senator O'Toole. Everything should centre around the best interests of the child.

Question put and agreed to.
SECTION 3.

I move amendment No. 2:

In page 6, subsection (5), line 24, after "appropriate", to insert "and may convene a suitable team as outlined in subsection (2) and (3) of section 9”.

The basis for this amendment is a recognition of how schools actually function. The principal of any school, regardless of its size, is under extraordinary pressure in terms of his or her work. They never have enough time to do everything that is required of them. Many principals of small schools have a full class responsibility in addition to the other tasks that come with their position. There are management, educational, functional and parental requirements with which they must deal, and that is only the tip of the iceberg. Every time we pass new legislation in these Houses, we put additional work on principal teachers in particular and the school authorities in general. The principal is the key person in any school and he or she must be the fulcrum upon which progress is levered.

Regardless of any prior knowledge of a child's abilities, each school has to produce a individual education plan for him or her. What the Bill refers to as an ‘education plan' is more commonly referred to as an IEP, an individual education plan. Each plan is child-centred. The principal may do that and it is a very intensive job of work, looking at every aspect of the child's education from the curriculum to psychological, physical and social requirements.

Yesterday I asked a fellow teacher for a response to the Bill's provision that the education plan should include the goals which any child is to achieve during any period not exceeding 12 months. He said that the idea of goals to be achieved in the course of the year has no relevance in these situations. That teacher said that if he could get a child to learn how to lift a spoon, that would represent an extraordinary achievement. That is an extreme situation but it is part of the spectrum of disabilities about which we are talking. It begins at that level. I am not suggesting that such a child would be dealt with in an ordinary school, but I need to give the example to explain the education plan.

Principals will be very angry that this is being introduced following their meeting with the Minister in regard to the various difficulties involved in their work. They are now being given more responsibility without negotiations taking place or agreement on the resources and how the work can be done. I am asking the Minister to give a commitment tonight that before the proposals are implemented there will be absolute agreement with the INTO that resources will be made available to these principals. I will return to that matter.

The reason my amendment refers to section 9(2) and (3) is the proposal that the principal can decide the best person to do the education plan is the special educational needs organiser. Section 9 outlines a whole list of support structures that can be put in place legally and on a statutory basis by the special educational needs organiser. In other words, the special educational needs organiser can bring together a team of people, including psychologists, to deal with these requirements. This is the special educational needs organiser's only duty and that person has a team to carry out the work, and rightly so. However, principal teachers in mainstream schools have many other responsibilities. My amendment proposes that what is put in place in the Bill to support special educational needs organisers should also be available to principal teachers.

I welcome the recognition in the section of the importance of the role of school principals and teaching staff. I said a great deal last night and I have much more to say about how teachers, particularly principal teachers, will feel badly put out by this proposal. Nevertheless, they will also feel there is at least a recognition of their role in this regard. Resources should be put in place to marry the two positions. Obviously, the principal teacher could delegate this responsibility but this needs to be made clear in the Act. There is a reference that this can be done by a teacher, but it should be clear that this additional function is something the principal might decide would be more appropriately done by someone else in the school, for a variety of reasons. There might be a special class teacher, a resource teacher or a visiting teacher who the principal might conclude would do the job more effectively. For that reason, it should be made clear that this function could be devolved to an appropriate member of staff.

Having had experience of dealing with and devising an education plan for special educational needs in special areas, I agree with much that Senator O'Toole said. We need to ensure there is a team, including an educational psychologist, a remedial teacher, a career guidance teacher and perhaps a class teacher or resource teacher. That would arise in any event. However, Senator O'Toole is correct that perhaps it should be spelt out more clearly. I would like to hear the Minister's views on the matter.

I agree with Senator O'Toole in this regard. Looking at it from a layman's point of view – I am neither an educationalist nor a teacher – it seems the Minister is putting unbe lievable responsibility on principals of schools, whether small or big schools, without any additional resources. Will the principal have to carry out a formal assessment of each student in the school before he can invite in teachers with special responsibilities? If a principal does not detect that a particular student has a problem, would it leave him open to litigation in the future whereby he could be sued in the courts by the family or student involved for not detecting that the student had special needs when young?

I support Senator O'Toole's amendment because this section needs to be developed further. Perhaps there could be some form of template which would include resources and special needs teachers who could visit each school. This aspect warrants debate with the leaders of the various unions.

It is very important to have goals. They may be simple goals or small goals but they must be agreed goals. As Senators pointed out, particularly Senator O'Toole, lifting a spoon in some instances is a goal while identifying letters and communication are goals in other cases and there are various ways this can happen. It is important that there are goals and that they are set out rather than just drifting on.

Senator O'Toole was concerned about the support services and resources, which is the purpose of the Bill. The national council for special education will have responsibility and resources to provide the necessary supports.

It is provided in the Education Act that the principal can delegate. The principal in the school will have an obligation to prepare an education plan for the appropriate education of the child concerned. In having this responsibility, it obviously makes sense that a principal should have access to the advice – I accept that should be made very clear – of the multi-disciplinary team in the same way as a special needs organiser where an education plan is prepared at the direction of the council. I, therefore, agree with the thrust of Senator O'Toole's amendment and I am persuaded by his contribution of the value of such an amendment.

However, with the permission of the House, I would like to table an alternative amendment on Report Stage which will encapsulate the Senator's proposal. The amendment would read, " ‘In page 6, subsection (5), line 24, after "appropriate", to insert "having regard to section 9 subsection (2) and (3)' ". This is the section which deals with the group of persons and inter-disciplinary team. This should make the proposal absolutely clear, as the Senator pointed out. It was suggested to me that this would be the appropriate amendment. I thank the Senator for his suggestion.

I thank the Minister for accepting the thrust of the amendment. I just quibble about two of the words. Rather than "having regard" could he perhaps use the words "as outlined". The word "regard" is weak. People need to be able to point to it and say "Yes, it can be done that way". The clarity of language would make it easier.

My advice is that we could say "having regard to" or "as referred to".

"As referred" is fine.

Amendment, by leave, withdrawn.

Amendments Nos. 3 and 3a are out of order as they involve a potential charge on Revenue.

Amendments Nos. 3 and 3a not moved.
Question proposed: "That section 3 stand part of the Bill."

There is a dichotomy here which the Chair might help me resolve. It has just ruled out of order two of my amendments and unfortunately I cannot move them. They both required resources. One said that the school might recoup the costs associated with the production of the education plan and the other asked that the board of management ensure the school principal is supported by any additional staffing required. The Chair ruled them out of order.

Acting Chairman

We cannot question the Chair's ruling.

There is no quibble with the Chair's ruling. The Chair is on my side on this. Last night when we asked about the resources we were told they were available. I thought I would spell that out in an amendment but when the Cathaoirleach read it he saw it would cost more money and it was ruled out of order. Last night the Minister said the resources were available, so I need him to tell me how it can cost more money? Perhaps it is a restatement of the money but it cannot be an additional cost.

The educational plan has to be put together. I have seen the work involved for the principal and what is required and we agree it needs to be done. However, I cannot see how the resources get from where they are to the school authority – the board of management, the principal, the class teacher or whoever has to do the work. If they have to convene meetings or meet parents, from where does the money come? It is not appropriate for it to come from normal school funding. I am now suspicious because I put forward an amendment in order to have clarity on the matter but the Chair thinks it will cost more money. How can that be if the resources are there?

I support Senator O'Toole. This is the kernel of the Bill. We were led to believe the necessary funding would be in place. This issue will arise in another section of the Bill and I hope the Minister has an explanation for it. It is unfair for the Chair to rule Senator O'Toole's amendment out of order. Funding is the kernel of the Bill. How can school principals take on considerable additional responsibilities without additional resources? Will they be provided or not?

Last night I explained that we are providing an enormous amount of extra resources. People are already doing these things and any resources needed will be provided.

We have a chicken and egg situation.

I explained that in about two and a half years we have gone from €7 million a year to €70 million a year in terms of providing resources. Senator O'Toole is here long enough to know why the amendment was ruled out of order.

Does the Minister agree with the Chair's interpretation?

I agree that the Chair is technically correct. I must refer the Senator to section 13 which states, "The Minister shall, with the consent of the Minister of Finance, out of moneys provided by the Oireachtas, provide for the payment to or in respect of schools and their employees such moneys as are necessary for the provision of appropriate education to children with special educational needs." I do not want to go into the proposed amendment but listening to the Senator's concerns I propose including in that "in accordance with the provision of this Act" in order to make it clear we are talking about meeting the provisions of the Act. That is where the funds are provided.

I know the Senator is concerned that the Minister of Finance is involved. He is constitutionally involved but the key element is that it says "the Minister"– the Minister for Education and Science –"shall". It is the Minister who has the obligation and that is a legal and enforceable requirement. Beyond that the Minister for Finance must be consulted and give consent. In a case where "the Minister shall" there is not much scope for doing anything other than giving consent unless one wants to go to the courts. This provides for procedures in the courts if it is not met.

I appreciate the Senator's concerns but I think they are well met. On section 13 I will go a little further to ensure they are met.

I need clarification on where we stand with this section. Reference has been made to section 13 which must be referred back. I understood that when the Minister for Finance agreed the budget, it went to the Department of Education and Science and the spending of the education budget was a matter for the Minister. That is why I am worried about section 13. I think it refers to the overall amount of money and is not based on the school or the child. What I do not understand and what is not in the Bill is how the money gets to the school. What is the conduit?

Section 13 talks about the provision of appropriate education for children. The development of the education plan might happen in one school and the provision of education might be in another school. The payment of the money would not arise in the first school so the principal and school authority will be out of pocket unless there is a way to make it clear. I agree this could be dealt with under section 13 by changing the wording to ensure that expenses properly incurred by schools or school staff under the direction of the board in order to implement all aspects of the Act are covered. It would not just cover the provision of education which might be seen as a narrow view.

Perhaps we should say that expenses, properly incurred by the school or staff in the preparation or implementation of plans – which is what the Bill is about – can and shall be provided by the Minister. That could clarify it significantly so that I can point out to principal teachers that money shall be provided by the Minister for the job they are doing, without their having to face the arguments which they almost certainly would. They may never get around to providing education for a child – that may happen somewhere else – but they still have to do the work. There is a huge gap and I need to have a clear commitment that the funds will go to the proper place.

That is why I am putting clarification into section 13 on the point the Senator raises. It relates specifically to the provisions that are here. It is important to understand that this is becoming a demand led scheme, based on assessments. People cannot say I have a blank cheque book. It is an open cheque book, but for properly assessed needs that are in plans, it is not just demand led without responsibility. One must be responsible in relation to the provisions of this Bill.

The Minister should remember that the plan is demand led too.

Yes. I know that, which is why we have gone from having funding of €7 million to €70 million in such a short space of time.

I ask the Minister not to say that again. We have all heard this and we got the message. The Minister should put it in the manifesto. Let us move on.

It has to be said.

In effect, that is why we have gone along that route because once the needs are assessed the money is being provided. It is difficult for people to understand because it has not been the way up to now. This Bill makes it statutory. We have been doing it administratively but this ties it into a statute so it becomes a right.

How does the money get to the school?

Once it is a demand led scheme, during a particular year one gets the budget and estimates at the beginning of the year. However, if the estimate is under the amount required to meet the assessed needs and proper development – according to the Bill – it must be provided. Hence the demand led principle.

How does the money get to the school principal, for instance, who has spent a month working on this?

That is why we have the national council. It will have the staff to work specifically with the schools. We will have staff that we did not have before, some of whom are already in Athlone working on special needs, but the staff complement will be enhanced and will have an independence of the Minister to work in that area. It is worthwhile emphasising the point.

Will the schools be able to claim the costs of preparing the education plan? I need to hear the answer to that on the record at the very least.

Surely the principal of the school will submit the claim and the demand that will be required and will know exactly the special education needs.

The Senator should ask the Minister what happens to those claims when they reach the Department.

Some schools cannot even get a pane of glass.

The Senator and I know the procedures better than anyone. The Minister is saying that when the demands are met and requests are put forward, they will be honoured by the Department.

That is effectively the situation.

That is a contradiction, although I am not saying it is deliberate. Senator Ormonde said this will be done through the Department of Education and Science, whereas the Minister told me it would be done through the national special education board. This is precisely the kind of difficulty I have. These are the questions I will be asked at the conference next week.

The funds will come through the estimates which go to the Department. The administrative arrangements will be made through the national council, but in the meantime, before it is established, the money will be paid directly. When it is established, it will be paid by whatever is the most effective way of doing so. In the first instance, authorisation for it will come from the principal of the school, as Senator Ormonde said. It is then an administrative matter. The basic issue is that the money will be there and these elements are being recognised, including the preparation of plans and all that goes with them and the specialists will have to be available.

There is no question that this is a major change but it is a change that is long overdue. These things are happening not just because we have greater resources. We are giving the support which principals and parent have sought. That has been given as of right.

I want to tell a story and I would like Senator Ormonde in particular to listen and pay attention. I do not say that in a teacher-like way but it may help to guide her absolute trust in the Department – the €7 million to €70 million place.

For the past five or six years, schools have been providing payment for psychological assessments of children out of their own resources. I am giving the Minister an opening to come back with his claim regarding the €7 million to €70 million but I need to make my case. I was in a small school near Edenderry where the total funding they received from the State in one year was spent on psychological assessment. Senator Ormonde would be proud, because I told them to send the bill to the Department as it was the appropriate thing to do. The bill came back unpaid. We did it with another school and we were doing it for years until we met that nice man from the Department of Education and Science, Deputy Woods, and we asked if it would not be good to pay these people for doing this. He eventually agreed – out of the €70 million.

Now that has been put in place by the Minister and I give him credit for it. It was a progressive move so that when schools in certain circumstances have to carry out psychological assessments, they can recoup the costs. The gap between the schools deciding what they needed to do – and were required to under the Education Act – and getting paid for it was years and some of them were never paid. I want to find a place in the Bill that I can point out to doubting principals and school authorities to assure them they are not being set up and they will get the money.

I have listened to the Minister say that the money comes from the budget to the Department of Finance to the Department of Education and Science to the special education board but what I have not yet heard is how the money gets from there to the schools. All the Minister needs to say is that all appropriate and proper expenses arising out of the preparation of the plan are redeemable and can be claimed from the Department. That might be funding to do with staffing, resources or assessments – we do not need to say what they are but that they are appropriate.

Yes, they will be met and that is the purpose.

That is a yes. I thank the Minister.

Staff will continue to be paid by the Department and the other expenses will be met. I thank the Senator for what he said about the NEPS and its development. We have gone from having 44 psychologists to shortly having 160 when the current interviews are complete. We got approval for the end of this year to increase that figure to 200. We will have in the region of 200 by the end of this year which is a dramatic change. The target contained in the national development plan was that we would reach this figure by 2004. We are, therefore, two years ahead of schedule.

I appreciate that last year and the year before there were many difficulties, but it was hard to communicate that what was happening would not recur because the NEPS was building up and extending its regional service. As Senator O'Toole mentioned, arrangements are being made on an interim basis where the service is not yet available.

Would it be fair for me to interpret what the Minister has said as that the costs incurred by the school in properly developing the education plan are redeemable, provided they are properly vouched for?

Yes, that is correct.

I am not trying to pull a fast one; I just want to be able to say this to teachers, school authorities and school managements. Is that a "Yes"?

Absolutely, yes.

Why then is the Minister getting worried that he will have to consult on the issue?

No, I am not. One minute ago I was being told that I was not telling the truth. I have to be very careful in the Seanad.

That is the reason we are having this debate – we were all a little unsure until now.

There you are.

While I still have doubts about this section, I am not going to put it to a vote because I will come back to it on Report Stage.

Question put and agreed to.
Section 4 agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."

Where a parent makes a case to the council to have his or her child included in the register, it is putting unnecessary pressure on the parent. It would seem from the section that the parent has to have all the assessments carried out and give them to the council. Once the parent notifies the council, the obligation should be on the council to get the principal or whoever else is responsible – as the Minister said, the principal can delegate the responsibility – to act, in order that it will be up to him or her to provide the assessments for the council. In this instance, the section places too much pressure on the parents of a child to make sure all the assessments are carried out. The council should ask the principal to carry out the assessments.

While I appreciate the Senator's concern, section 5(1) states, "A parent of a child who is of opinion that his or her child has special educational needs may apply to the Council to have the child entered in the Register." Therefore, it is the parents who can apply and the organiser will be the person bringing the team together. It can equally come from the school. It leaves the options open in order that parents can be involved. The word "may" is very important in this context.

It is the fail safe method in order that if the parents believe it is not going the way they want, they can apply. It is an extra provision to make sure parents are covered. Parents who have concerns that a child may have special educational needs may bring the matter to the attention of the council by seeking to have their child entered on the register. It is a fail safe mechanism for parents.

While I appreciate what the Minister is saying, if the parents notify the council that they want their child included in the register, who carries out the assessment? Whose responsibility is it to get the assessments for the board? My reading of it is that the responsibility to make sure the assessments are carried out rests with the parents. My concern with the section is that the responsibility is theirs at that stage.

It is the parents in that case, but they can have them done under the NEPS system, as they do at present. It comes back to whether they want to have them done privately. They can do so, if they wish. Some parents prefer to do so. If they find there is a special difficulty, they can bring it into the system. Others will use the national education psychological service and move forward from there. In that case, an application will be accompanied by any relevant assessments and information concerning the child, as the council deems necessary to reach an informed conclusion regarding the application. It will then decide either to register or decline to do so. Where it declines, the safeguard for parents is that they may appeal the decision within one month to an independent appeals board. This confirms the vital role of parents in the new procedures. While the focus of the Bill is on the rights of children and others with disabilities, we must also support the rights of parents to determine the best route for their child wherever possible.

If at that stage a parent wants his or her child included in the register, would it be possible for assessments to be carried out by the principal who, in the main, has to do it himself or herself at the beginning? In some cases a parent may not be au fait with matters. Therefore, the responsibility should be taken off him or her to apply to the NEPS.

It is the principal.

It is either the principal or the special needs organiser.

I hope the entire responsibility would not lie with the parents.

No. It is only a fail safe measure whereby, if they are not satisfied with what is happening, they can take this route.

I am unclear about the point made by the Minister in answer to Senator Burke's question about who may seek an assessment. Under the section the council may seek an assessment. Section 7 states that in preparing the special educational needs plan, the special educational needs organiser shall cause an assessment of the educational needs to be carried out. I presume, however, this does not in any way cut across the school's right, in normal terms, to have an assessment carried out.

No. That is correct.

I know there is a line somewhere in the Bill that states it does not cut across any other statutory rights anywhere else.

Yes, that is correct.

I just wanted to be absolutely sure about that.

Question put and agreed to.
Section 6 agreed to.
SECTION 7.

Acting Chairman

As amendments Nos. 4a and 4b are alternatives to amendment No. 4, all may be discussed together.

I move amendment No. 4:

In page 7, subsection (1), to delete all words after "by" in line 42, down to and including "psychologist;" in line 45, and in page 8 to delete lines 1 to 5, and substitute "an educational psychologist.".

The difficulty I have with this section is that there is a misfit between the lead-in paragraph and the list below it. I have considered it a lot today since I tabled the amendment. When I look at my amendment, however, it seems to exclude certain matters, which was not my intention. My amendment reflects the point we discussed about the educational needs of a child, which are not best served by a medical practitioner, social worker or therapist. Section 6 states:

Where the Council receives a notice under section 4 or an application under section 5 the Council may, if it considers it appropriate to do so and subject to section 7(2), cause an assessment of the educational needs of the child concerned to be carried out.

The only people who can assess the educational needs of a child are educationists or educational psychologists. That was the point of my objection to the list in the section, and my amendment. I recognise, however, that while my amendment may do what I set out to achieve, it would actually change the intent of the section. The problem is that in assessing the special educational needs of a child it is also necessary to find out and explore other needs closely connected with their educational needs. One set is dependent upon the other. In other words, a child could have a medical condition which would inform or modify his or her educational needs.

What I, and I imagine Senator Burke, were trying to achieve, although I have not discussed it with him and do not want to put words in his mouth, was the inclusion of a form of words such as "other connected needs" after the word "educational" in section 7(1) because the section needs something like that. I am not trying to widen the scope of the Bill. It is just that, to determine the educational needs, it may be necessary to investigate other needs. The assessment may need something like that. As well as that, the list of people should include an educational psychologist as well as the psychologist specified or just an educational psychologist. There would have to be a reference to an educational psychologist as distinct from another type of psychologist.

I am trying to recognise that educational needs are a matter for educationalists who may be informed by other people. It is a case of how we get to the point of doing that. It is not that I want to exclude any important information which could be made available by others.

I understand Senator O'Toole's approach. When a child is being assessed, the opinion of an educational psychologist is needed. The matter begins before that because someone must refer the child to the educational psychologist. In the course of an assessment it may be discovered that other aspects of the child's personality need examination and it may be necessary to defer to other expertise. That is covered in the Bill. I am delighted that a social worker is specified because he or she can say a huge amount about other needs. If the social worker and psychologist were to work together, it would allow for a broad assessment of the requirements and needs of the child involved. The process begins with the educational psychologist and moves on from there so that a wide assessment is obtained. I agree with the specification of an educational psychologist. I am not sure about specifying a medical practitioner. Will the Minister give us his views on that? I welcome the other aspects of the section.

I agree with Senator O'Toole that the psychologist should be an educational psychologist. The aim of our amendment is to make the assessment more of a team effort and that more than one person would be involved in the assessment. That is why we wanted to change the last line in section 7(1) to read:

.those persons shall include the following–

(a) a psychologist;

(b) a medical practitioner;

(c) a teacher nominated by the principal of the school which the child is attending;

(d) a social worker; and

(e) a therapist.

Our amendment would achieve more of a team effort by allowing for a group of the people listed in the section.

I agree with Senators O'Toole, Burke and Ormonde that the inclusion of the word "educational" is essential in this section. I do not see the point of Senator Burke's amendment which would change the word "may" to "shall". It may not be necessary to have the other people involved in the assessment, although it may be in some cases. The wording is strong enough to include them if they are necessary. There is no point having people involved in an assessment if they are not required. I do not go along with what the Senator said, but I agree with Senator O'Toole's suggestion that the word "educational" should be included.

I am happy to accept amendment No. 4b as it provides a greater focus on addressing the special education needs of a child in an assessment. Senator O'Toole made this point as well. The purpose of section 7 is to ensure a multidisciplinary approach is taken to the assessment of a child who has or is likely to develop special educational needs. This is extremely important as the response to a child's educational needs is determined not only by educational issues but also health, welfare, therapy and behavioural factors. If we were to limit the assessment to one carried out by an educational psychologist, there would be a danger that it would be inadequate and, therefore, the response could be inappropriate. The approach I have adopted in this provision ensures that a holistic approach is taken to each child's assessment and that this will inform the preparation of the education plan.

I thank the Minister for accepting amendment No. 4b. The point we made was that it should be more of a team effort. In light of what the Minister said, I will withdraw the other amendment.

I support the amendment which has been conceded because it is important. I will not push my amendment because I am not happy with it and I accept the points the Minister made. However, will he consider the following before I withdraw it? My contention is that the assessment of the educational needs referred to in sections 3(3) and 6 should be done by an educationalist – someone with an educational qualification, such as an educational psychologist, teacher or whatever. I recognise the importance of the point Senator Burke, the Minister and others made about the input others could make. The Bill states that the assessment should be carried out by a list of people specified. I have an objection to that because a medical practitioner could never be seen as someone who could make a decision on educational needs.

What could be done is to drop the word "by" from section 7(1) and replace it with the words "with the assistance of" so that it would read:

"An assessment under section 3(3) or 6 shall be carried out with the assistance of persons possessing such expertise as the special educational needs organiser or the Council, as the case may be, considers appropriate; those persons may include one or more of the following–”.

That does not violate the section, recognises it as an educational issue and allows for the team effort to which Senator Burke referred and for the involvement of all the people the Minister mentioned. It would still involve an educational person and, while the section would stay silent on who would conduct the assessment, it would allow it to take place as an educational issue and allow for the team effort to which Senator Burke referred. Will the Minister consider taking that on board on Report Stage?

I support Senator O'Toole on this matter. It would give the section the flexibility it requires.

We will consider it for Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 4a not moved.

I move amendment No. 4b:

In page 7, subsection (1)(a), line 45, to delete “a” and substitute “an educational”.

Amendment agreed to.

I move amendment No. 5:

In page 8, subsection (2), lines 9 and 10, to delete "and shall not cause the assessment to be carried out without the consent in writing of the parents".

The Minister's advisers will be aware of my views on this and it is a discussion which must take place. I may appear to be doing the unthinkable. The Bill requires parental consent in writing before an assessment can take place. I question and challenge that for the reasons I stated earlier.

Under our Constitution, a child has the right to be educated and the parent is the prime educator and can make a choice not to exercise that right in person but to entrust that task to the educational system, in other words to ask a school to do it. Those are three distinct rights and they are not mutually exclusive. There have been situations in various parts of the world where parents, for some daft reason, did not wish their child to be educated. Under our Constitution, the Minister is also required to ensure that each child receives a certain minimum level of education and the Education (Welfare) Act was passed a few years ago to ensure that happened. Under that Act if a parent decides he or she will educate a child at home and the Minister's representative or inspector is not facilitated in evaluating or assessing the education the child is receiving, the Minister can intervene and insist that the child goes to school, where evaluation takes place as part of the normal daily classes.

The key point is that there is provision for intervention. It is not a matter of the parent's right superseding that of the child – the Constitution requires the child to be educated. It is perfectly right and proper that parents should be involved in this process. We do not want a situation to arise, as could happen, where people will decide they do not wish to send their child for assessment, and that they want their child to be at home. This is particularly liable to happen in the context of special education, where people may say they want their child to be happy at home, rather than being educated elsewhere, which may be understandable, although it is not the right thing for the child.

I do not expect the Minister to be totally supportive of my proposition in this regard but I ask him to make a significant response which will have regard to the constitutional position. In a situation where the Minister or his representative believes a child should be assessed but a parent says "No", the rights of the child should prevail in the same way as in the Education (Welfare) Act.

To some extent, Senator O'Toole has answered his own question. There are several vehicles for doing what he refers to, including the provision for the State to intervene under the provisions of the Education (Welfare) Act. In this Bill, the State could go to court, if required, but we may make it more explicit and I will consider that when the Bill goes to the Dáil. It requires some consideration and I will look at the issue.

I accept that. There are causes célèbres in this regard, including a case in north Kerry and one in Leitrim, where the Minister's Department has been in and out of court in an effort to get children to attend school. I am not advocating any hasty action. I appreciate there are constitutional issues and I am not a lawyer. However, there is a question of a child's rights being recognised as the core issue. I am prepared to withdraw the amendment on the basis that the Minister is prepared to consider this and bring forward an appropriate wording which also values the parent's involvement. I do not wish it to be seen as any diminution of the parental contribution. It is, rather, a proactive approach in favour of a recognition of the child's rights. Naturally, there should be consultation with the parents but if, in the final analysis, there is a view that an assessment should take place, then it should go ahead.

Amendment, by leave, withdrawn.
Section 7 agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."

When the register is compiled, it will include all the matters referred to in subsection (2) (a), (b), (c) and (d), as set out in the Bill, including the nature and extent of the child's disability and the name and address of the parents and the child. The register will contain a great deal of information in that regard and I believe it should only be accessed in limited circumstances. It should be treated as privileged information which not everybody can access. The Bill does not appear to specify clearly how this confidentiality will be safeguarded. We are in an era of litigation and there could be negative consequences for a child or a family or it could militate against a person getting a job – it could have various connotations for the child concerned. I ask the Minister to explain where in the Bill this privacy is to be maintained.

The Data Protection Act applies and that is how privacy will be maintained.

Question put and agreed to.
Section 9 agreed to.
SECTION 10.

I move amendment No. 5a:

In page 10, subsection (2), between lines 27 and 28, to insert the following new paragraph:

"(h) The teacher to be consulted with regard to the setting of the goals which the child is to achieve as part of the education plan.”.

This relates to a core element of the Bill. It involves setting up an individual education plan for a child with a disability. In order to deal with the child's special needs, whether it involves autism or whatever, an assessment is required. It could involve a child who is already in a school classroom or it might be a child who is presented for enrolment at a school and the school principal considers an assessment necessary to ensure the child can benefit to the greatest extent from attendance at the school. The next step is to set up the education plan. I am sorry if I appear to draw out the point but it has to be contextualised.

The education plan will have to look at the nature and degree of the child's disability and how that disability affects his or her educational progress. It continues to the question of educational performance and looks at the precise educational needs, based on earlier consultation with a psychologist or whatever professional guidance is required. The next point is the goal to be achieved by the child over a period not exceeding 12 months. Those are all very important matters and they could relate to a child who is already in the school concerned. I believe that, after eight, the teacher should be consulted with regard to setting the goals the child is to achieve as part of the education plan. It is crucial that the setting of the goals should involve a teacher input and, as the Bill stands, it is unclear if that will happen.

I accept it is the Minister's intention to have a teacher consultation but that is not written into the Bill and that could cause problems in the event of court proceedings. I would welcome the Minister's response.

I agree with most of Senator O'Toole's comments. I believe the matter of goals is already detailed in section 9. I do not particularly like the idea of goals in the context of dealing with people with disability as it may be seen as too great a step for them. I also wish to raise a point in relation to the 12 months provision in this section. Should we specify 12 months when the goals which a child should achieve—

Acting Chairman

We will come to that later.

I am of the view that it is really a matter for the school or the council to decide what must be included in the education plan. There is a list of matters contained in section 10(2) referring to the education plan. It is not exhaustive and other matters may be included. If the amendment was to be accepted, there would be a risk of the legislation becoming too prescriptive. On the question of the principal or a teacher nominated by the principal, this is already included in section 9(3)(b).

I do not disagree with that point. Perhaps I have not explained my position clearly. Section 10(2)(g) states the plan will include the name of the school which the child is to attend. This recognises that it could be a different school. It could be any school. The child will arrive at the school with a set of educational goals without any consultation with the teacher in the school who will be dealing with him or her. That is the difficulty I have with it. It is a matter of recognising how this will work on the ground. In terms of the preparation of the plan, if it is all happening in the same school, this issue will not arise, but if the child is going to another school, it will.

I cannot see that happening. If a child is assessed in one school and sent to another, there will have to be a correlation between the teams of each respective school regarding the consultation process. That will happen. Section 9(3)(b) refers to “the principal of the relevant school, or a teacher nominated by the principal of the relevant school to be a member of the team”. What Senator O'Toole fears will not happen.

I agree with the sentiments behind what Senator O'Toole suggests, but the Minister has pointed to the words in section 9(3)(b) “the principal of the relevant school, or a teacher nominated by the principal of the relevant school”. I hope the principal could nominate a teacher from the school where it is suggested the child should attend, particularly if he or she is moving from mainstream education to a special school. In such a case it is important that somebody from the special school is involved in the preparation.

Under the welfare Act, the principal is required to inform the school to which a child is transferring. I would not envisage any particular problems in this regard. We are trying to ensure in law the general package is right. Common sense will prevail in the way in which this is done. The key element is that the principal or the delegated teacher will have a prime function and have to be consulted and involved in the decisions made.

The difficulty is that common sense does not prevail. Every one of these steps is going to require the agreement of several people. I accept the point made by a number of Senators regarding the principal of the relevant school or a teacher nominated by him or her. That could be stretched to say it might be the school to which the child is going.

Can anyone imagine a doctor being asked to accept a patient where the remedy has already been prescribed? He or she will have to come to his or her own conclusions. The goals for a child will be set by the teacher in the class. No matter what education plan is put together, any judge in the land will say that the person required to implement it is the one who knows the child. Believe me it is going to happen this way. Someone will produce a Rolls Royce plan and bring it to a teacher in a school who will say he or she is not doing it. The Minister will surely not tell me that will not happen. It will happen – regularly.

It will be a matter with which my successor, John Carr, will be left to deal. This needs to be absolutely clear. If we do not have the professional charged with the responsibility of reaching these goals involved in their determination, difficulties will arise. The plan will prove to be incapable of implementation. A class teacher put before a judge will plead that he or she has never met the child before. The child will have come into the class with a set of goals and what is the teacher supposed to do with him or her? A child could be in a school having his or her needs assessed and because of his or her particular disability will be sent to a special school. He or she will be sent there with his or her set of goals, which will have to be put together before a school is named. Naming the school is the last thing to be done. How is it proposed to deal with the issue of a teacher being handed a list of goals without having had any interaction with the child?

If it is the case that this is common sense, please indulge me and write it into the legislation in order that we do not have to argue over this any more. If it is clear, let us write it down. I have been dealing with schools for too long now to know where common sense gets me. Common sense would have schools properly funded and properly staffed with all necessary resources. If common sense were allowed to apply in primary schools I, my successors and I would be out of a job, as there would not be any need for us.

We are making heavy weather out of this.

We believe the Bill is being rushed.

If there is a case in a school where a child has to be transferred to another school, there are several people involved – the parents, principal, career guidance counsellor and educational psychologist. The educational psychologist, career guidance counsellor or whoever else will go to the other school with the case study to detail what is required in regard to the assessment done. All the information involved will be transferred to the other school. The educational psychologist will be dealing with the other school, but if not, there will be an educational psychologist and a class teacher or resource teacher and the principal of the other school with whom to discuss the case which will proceed from there. I do not understand where the problem lies.

If we say that, the problem goes away. If it is simple, let us say it. Let us include it in the Bill.

The problem will go away because one will have the benefit of the expertise of the educational psychologist who will be the key person dealing with the matter and he or she will be able to transfer the case study to another educational psychologist and the principal of the other school as well as the class teacher or resource teacher. Whoever will be involved will adhere to the case study and implement it accordingly.

I find the case made by Senator O'Toole to be very convincing. He is somebody intimately concerned with this area. If I understand this correctly, a child could be in a school for a comparatively short space of time while an assessment is made, before being transferred to another school with the plan of campaign already determined. I am not sure that is a good thing, especially if the plan is fixed. It is not even good teaching practice. In a human sense, a teacher developing a relationship with a child feels that he or she has a particular perspective and that a plan will grow organically as the relationship develops. Any good teacher will take the recommendations and expertise of an educational psychologist into account, but the plan should still develop organically. It should not be determined to too great an extent before the child arrives at the place where the teaching will actually take place.

The teacher will not know the child.

Senator O'Toole has made a very comprehensive and good case and if, as the Minister and Senator Ormonde suggest, common sense will prevail, there cannot be any argument against spelling this out before it lands on the Minister's desk or the desk of his successor.

I do not want to go over ground other Senators have covered, but my question arises from what was said. If a student leaves one school and goes to another, do both principals make out plans? When the child arrives at the new school, does the principal make out a new plan instead of adhering to the plan the child had at the previous school, as set out in the file he or she takes to the second school? Whether it is an ordinary school or a special needs school, does the principal carry out an assessment of each pupil in it?

Under the Welfare Acts, if a child is moving to another school, the principal has to pass on any information relating to special needs, so the matter is covered already.

The amendment seeks to provide that the teacher is consulted with regard to the setting of the goals which the child is to achieve as part of the education plan. Section 9(3)(b) specifies that the principal of the relevant school, or a teacher nominated by him or her, is to be a member of the team. The relevant school is described as the school the child concerned is attending, or which it is proposed the child will attend. The matter is covered adequately.

It is covered.

The Minister does not understand his own Bill if he believes what he has just said. With all due respect, the word "proposed" here refers to a school at which parents present a child proposing to enrol it. That is the "relevant" school, which is the point we have been making all along. It is either the school the child is attending or the school at which the child is presented for enrolment. The educational plan begins to be put together at that stage and it is then that it is decided to what school the child will be sent. It is a different school and there is no doubt about that.

The school which prepares the educational plan is the school at which the parents first arrive, which is not the proposed school. With the best will in the world, people will begin to put the educational plan together and I have no problem with that as there is no other practical way of starting the process. Until one starts the business, one does not know where it will finish. If it is decided that the best place for the child is not the first school to which it was proposed to send him or her, but another one, then there is no doubt that what is in question is another school. The relevant issue is what happens in this other school.

The other school will have its own plean scoile, or school plan, and its own staff and principal with a different way of doing business. The other school will require every teacher to have a scéim seachtaine, or weekly plan, or a plan that fits with the overall school plan, depending on how the school organises itself. That plan is the professional plan of work organised by each person and certain compromises have to be made because there is more than one child in the school. Unless the child with special needs goes into a one-to-one class, which is highly unlikely and hardly ever happens, there will be other children involved and their work obviously will be affected. A new set of activities will have to be implemented, taking into consideration what has to be planned for the other children in the class. We are discussing one child in terms of the legislation and it is correct that it should be child focused, but when these provisions are implemented there will be other children in the classrooms in 99% of cases. A compromise will be made and there will be nothing more irritating than professionally undermining teachers by introducing a child with a set of needs and goals for the year which have to be implemented. People will not buy into that and they will resist and resent it. It is wrong.

This gets worse. We have had this problem before. It was considered very practical to have shared teachers until somebody asked who was the principal of a teacher attending a number of schools. It is a small question and most of the time and for most people it does not matter, but when it does matter, it has to be answered.

Section 10 provides that, in preparing the educational plan, under section 3, the principal of the school concerned shall, unless he or she decides with the consent of the special educational needs organiser with responsibility for that school that there are good and substantial reasons for not doing so, comply with guidelines for the time being in force under subsection (3). Whoever wrote that might think it is, in Senator Ormonde's word, commonsensical, but no one can go into a school principal and tell him or her how to do their job. Not even a school inspector can make demands of a school principal. He or she can only advise. This provision undermines the authority of the principal and that cannot work. There can only be one person making decisions in a school and that is the principal.

I agree with that.

There is a set of bouncing balls here, one going after the other. The difficulty for the INTO is that John Carr, the president, and the union's executive will have to explain to teachers how this will work and these are the questions with which they will have to deal. Clarity is essential.

Two issues arise from this section, one of which I deal with in the amendment and the other which is the matter of educational plans. They will cause internal conflict. I have read through this Bill four times and it was only on my last reading, while having a cup of coffee before coming in here, that I spotted this last problem. I immediately saw potential for conflict and any official in the Department of Education and Science will agree with me.

As regards my amendment, I am told that common sense will prevail, but I do not agree. I am also told that "school" and "relevant school" mean different things, but that is not correct. Those issues might be arguable, but the issue of authority is not. The principal is the accounting officer in the school and he or she is responsible for the implementation of the curriculum. An inspector might come in and say that he or she does not like the way something is being done, but while the school is required to listen to his or her advice, the principal does not have to take it if their professional conclusion is that he or she does not want to change the way the school operates. When the Department of Education and Science issues guidelines for certain subjects, there is always flexibility in finding the best way to meet the needs of the school. That will not work here.

My frustration with the Bill is that it contains good things which are being trapped. I will not vote against the Bill because I want its provisions implemented. However, I might vote against ten things between now and then because I want to make the point that they will cause problems. Both these issues need to be revisited. There is the issue of the authority of the teacher in the classroom and what he or she is required to do professionally and there is the authority of the principal teacher in running the school and what he or she is required to do. There is a genuine conflict there. It is also a professional conflict and it is leading us to a steep cliff.

I am becoming more confused as time goes on. This amendment relates to the content of the educational plan. I accept the point made by Senator Norris that any of these plans must be organic. It must grow with people, particularly if it is proposed to move a child from one school to another. Moving to a new classroom and new teacher means relationships must be built before progress can be made. Obviously, therefore, organic development must take place.

As I understand it, the amendment deals with the content of the plan and who is involved in putting the plan together. This issue is covered in section 9. Let us say I am the principal of a school and I believe one of the children would be better off in a different school. I would go to that school and say: "We have somebody whom we believe might be more suited to this school." The principal of the new school will suggest the class that might suit the pupil. It might be for mildly or moderately disabled children. The teacher, there fore, would be identified and I would talk to the teacher and see what type of programme is likely to be put in place. That would be part of the formation of the educational plan. That is what I believe will happen. It is already happening every day on the ground. The situation is covered in section 9(3)(b). We are running around in circles and getting nowhere.

Senator O'Toole is right that the principal is the key person in this process. The principal is the authority. However, everybody knows that in the teaching profession there are many chiefs and few indians because everybody is a professional in their own right. That has always worked and will continue to work where professionals are allowed their own space. The professionals, along with the principal, will have this consultation process. It is wrong to suggest that the educational psychologist or the organiser will march into the school and lay down the rules to the principal of the school. There is no way that could happen. Both the Senator and I know it will not happen—

Did the Senator read it? The principal has to get the consent of the organiser. The provision has the same wording as provisions in which the Minister for Education and Science must get the consent of the Minister for Finance to spend money. The English language is simple and the provision reads: ".the principal of the school concerned shall, unless he or she decides, with the consent of the special educational needs organiser.". The principal must get the consent and that is being written into law.

That is untenable, unworkable and unacceptable and it undermines the principal's authority in the school. I believe it also must undermine the provisions of the Education Act, which make the principal responsible for the day to day activities of the school. I have not checked this, but I suspect it comes close to doing that.

We have said a great deal already about this issue. I cannot agree with the Senator and my advice is that he is wrong. Nevertheless, I am prepared to look again, as the Bill progresses, at the points he made in this respect. Subsection (4) deals with compliance with the guidelines. There are guidelines in every situation. They are devised in conjunction with the social partners. That is what is involved here. In the event of one not complying with the guidelines, the consent of the special educational needs organiser applies. The idea here is that the special educational needs organiser is, in effect, the guardian angel of the child through all the situations they encounter.

With regard to the Senator's other point, we cannot see it as a problem but I will certainly look at it further.

Is the amendment being pressed?

The Minister told me some time ago that when the word "shall" is used, it means the Minister must do it. The Minister was referring to section 13 which says that the Minister shall provide the money, but with the consent of the Minister for Finance because the Minister must get that consent. The same words are used in this provision. The principal of the school "shall" do it with the consent of the outside guardian angel. It is the same situation as applies between the Minister for Education and Science and the Minister for Finance – one cannot move without the other.

That provision undermines the authority of the principal. The Minister should recognise here that if a principal teacher decides not to comply with the guidelines, he or she will have a good reason for doing so. That should be recognised. There is no need to require him or her to seek consent. It is unsafe to impose that conditionality.

The Minister has, to an extent, given the game away by using the phrase "guardian angel". What superior authority could there be? He has underlined the fact that this person will be in a situation of superiority over the principal. He has effectively demonstrated Senator O'Toole's point.

Is the amendment being pressed?

The Minister said he will look at it again.

Amendment, by leave, withdrawn.
Question proposed: "That section 10 stand part of the Bill."

Section 10 refers to the goals to be achieved over a period not exceeding 12 months. Might that period be too short, particularly as it might relate to a severely or profoundly disabled person? It is worthy of a lengthier period.

We are talking about a year in school. The goals will relate to the disability, the potential and what is possible. I accept we have much to learn about that. I will have something to offer Senator O'Toole and others shortly in that regard. While people are talking about an election in the offing, I am not finished working yet. I will keep going. There is no question that we have much to learn and do in this area.

Any child needs to know where they are going in a year, especially a child with a special need. It might be a modest improvement or there might not be any real improvement, but that will depend on the assessed needs and the situation of the individual child. Nevertheless, we must be prepared to say that in a year in school we are aiming to have some improvement for the child and to try some teaching methods and so forth that will help to improve the child in that period. The 12 months would be a standard time period for such things in other countries.

I cannot agree to section 10. I have spent many years here representing teachers and many years talking to the Minister to whom I have listened speak to principal teachers. Whatever about the question, there might be some doubt about my amendment, which I withdrew. Even though I think I am correct, there is enough to state the class teacher must be consulted with which, in negotiations, we can deal. The withdrawn amendment can be dealt with in negotiations.

A Chathaoirligh, I am sure that you, as a school principal, will understand that I cannot allow, nor would anybody in such a position thank me for supporting, legislation which gives authority to somebody on an educational matter over a teacher in the day-to-day running and operation of a school. It is not acceptable to me that the principal must get that consent. I want to read the words again, that the principal can only make a decision with the consent of the special educational needs organiser. This is fundamentally wrong and fundamentally undermines the position of the principal. No board of management would want that to happen. I do not know where it puts the board of management.

What is the relationship between the board of management and the special educational needs organiser? I do not believe there is one. The board of management also has authority over the school. There is a decision being taken about the education of a child in its school for whom it is responsible by a person over whom it has no control and who may have no connection with the school. This is wrong. I appeal to the Minister to reconsider.

Let us be very clear about what we are talking about, this is to provide for consistency throughout the country. There must be consistency for children with special needs. In that regard, this refers to paragraphs (d), (e) and (f). In paragraph (d) one is talking about the special education and related support services to be provided to enable the child to benefit from education and participate in the life of the school. These are the special education support services to be provided. One is saying the specialist who specialised in looking after the child on which I will not make any other comments on should be consulted in this regard because the guidelines will set out the general nature of the measures to be complied with. Paragraph (d) is one of them with which I do not see anything wrong. It is a normal, natural requirement. The second deals with the special education and related support services to be provided for the child to enable him or her to effectively make the transition from primary to post-primary school education while the third deals with the goals which the child is to achieve over a period not exceeding 12 months.

This is a specialised area, one where one has the person who has specialised in special education. In other words, the principal may depart from the guidelines with the agreement of the special educational needs organiser. That is what the Bill states. It is reasonable that the principal should have a say, that there is a guideline running right across all schools. It must be reasonable and properly worked out. In a particular case the principal may be justified in departing from this guideline which will be done with the consent of the—

That is not what is written down.

Yes, but one must have somebody who is looking after the child with special needs. That is the whole purpose. It is to ensure there is someone to look after the child's special requirements, which is what the special educational needs organiser is there to do, but only in relation to specified and agreed guidelines.

Perhaps the Minister will explain this. It might make it very clear. I hope the Fianna Fáil Senator and the Progressive Democrats Senator will bear this mind. Does the House remember the nice scenario we heard a while ago, that they will talk to the school principal and the class teacher and that the principal will do this? Let us suppose the principal goes to the class teacher and determines the goals, they come to a conclusion on them having regard to everything involved, they are different from the guidelines because that is what they believed was in the child's best interests and what they want to do. However, they cannot do it if the special educational needs organiser does not agree with them.

The special educational needs organiser floats in and out of the school. This now confirms my original view. When he or she has gone out the door, it is the school principal and staff who will be responsible for the goals, with which they have not agreed, which brings us back to my earlier point. This proves to me that this is a mess. There is no hierarchical responsibility and it is not going to work. It undermines the position of the principal because, no matter how one looks at it, there is consultation with the class teacher, but it is worth nothing because there is another person who can make a decision. This deals with the question with which I dealt about the importance of the authority of the class teacher in the class.

It then goes to the school principal, who comes to a similar conclusion. This raises the question, "Can that be implemented?" It can as long as it is in line with the national guidelines. We are talking about a child centred curriculum. This is the Ireland that states that we will not have a curriculum which is prescriptive in terms of each child at national level. We are now saying the national guidelines "shall" apply unless somebody says otherwise to the school principal. I cannot accept this. It turns on its head everything that is happening in primary schools, the system of authority in primary schools and the work of principals and class teachers. It does not matter whether the Minister agrees or disagrees, that is what is written down. These are his own words about common sense and this is where common sense can now be turned on its head by a person who holds a different point of view.

I am not saying that the person concerned would not have the best of intentions. Somebody must call it. What we are deciding is that it will not be the class teacher and the principal. It will be somebody not part of the school staff who will make the final decision as to what is being dealt with by a child in the school. This is wrong. I do not think teachers will ever agree to it. Neither will I.

We prepare guidelines for every sort of matter in schools.

Yes, they are guidelines.

They are guidelines which must be complied with. One cannot go off and run one's own curriculum or whatever else one likes. These are very special children and there must be guidelines which provide for reasonable consistency across the country. They will be prepared in consultation and with proper discussion.

Having done this, if there is a case where the principal believes he or she wants or needs to depart from them, he or she just looks for the consent of the special educational needs organiser. I would expect that in most circumstances that would automatically apply because one has available somebody who is a specialist, who has specialist training in the education of children with special needs and is working right across the board and attending special courses, which, as a matter of interest, will be increasing substantially. That person has specialised knowledge.

We must have somebody to protect the children concerned in that situation. The Senator is talking about departing from relatively simple, straightforward guidelines to which people will agree generally, but even in such circumstances there may be cases where a principal believes he or she must depart from them. What they will be doing is checking the matter out with the specialist organiser.

I understand the point Senator O'Toole is making. He is making the point that nothing can interfere with what the principal decides, but for children of this kind there must be guidelines and consistency and for the principal there must be a means whereby if he or she cannot fit in with this, in a particular case, the special educational needs organiser will be there to give consent and agree that this does not work.

I find it horrific. I am going to stop talking about it now because I find myself getting really angry that we must have somebody to protect the children concerned. That is what I thought teachers and principals were there for. I resent deeply the Minister's statement, not an implication, that we cannot trust principals and teachers to do it.

The Senator should not turn this into a political football. It is not.

They are the Minister's words: "We have to have somebody to protect these children." This State has been well served by generations of teachers and principals who have protected their children, and they would never take a decision other than in the best interest of the children. The only issue—

The Senator has no problem.

I have a problem, which is as follows. When it comes to a decision on a child enrolled in the school, subject to the authority of the class teacher, principal teacher and board of management, the final call on an educational matter is to be made by somebody outside the school. It has never happened in the history of Irish education.

If we want the teacher to consult, I accept that. If we want somebody to make a decision on what should be in the curriculum of a school, I accept that. We have done all these things and there are very clear lines of authority. There is no precedent for what the Minister is proposing. I do not accept that, in respect of a final decision on the educational future of a child, we have to bring in an outside protectorate, guardian angels or whatever we wish to look after that child's needs. I find it absolutely appalling that we would—

When the Bill is passed, the Senator should not forget that if somebody is not delivering on the guidelines, then one can go to court. One can go to court over anything to do with this matter. One can go the whole way to the appeals board, the mediation, to court. The guidelines will be designed with the principals and unions involved to achieve the kinds of guidelines that are appropriate to any particular child with a special need. If a principal feels he has to depart from the guidelines that exist, naturally one would want to consult, at a minimum, the special needs organiser. A simple mechanism is being provided in this regard. I accept what the Senator is saying on this matter. However, we have to ensure that there is a national standard in terms of special needs. We are talking about bringing children with special needs into the sys tem and we want to provide a consistent standard across the country.

I have to support Senator O'Toole in this matter. As he said a long time ago, it is common sense. The Bill states in many sections that the education plan is being put forward by the principals of the schools. If that is the case, the buck must stop with the principal. One can equate this with any business one wants. If a country manager is making a decision on a planning application, he gathers all the reports from the various sections – the planning, roads and sewerage sections – and makes the ultimate decision. He might overrule some of the reports because of what he feels to be the best interest. The chief executive officer of a company gets various reports, but ultimately he has the call.

Senator O'Toole is quite right in this respect. When a principal gets the various reports from the special needs teachers, surely he should be the one to make the last call on what he feels to be in the best interest of the student. He, after all, is the person with whom the buck stops.

Earlier, I said that when the Minister puts this extra responsibility on the principal of a school, it leaves that principal, who prepares the plans, open to litigation. If a teacher or principal does not detect that a pupil has a special need, will that leave the principal or teacher open to litigation years later? If so, the last call must be with the principal. He has to be the boss in his own school. Everything rests with him. Senator O'Toole is quite correct in this regard.

Senator O'Toole has already referred to the point I was going to make. It is late at night and the linguistic guard is slipping, and interesting patterns are emerging in the Minister's speech.

I was very struck by the fact that he used the word "protect" because one protects a child against some danger or threat. It is scarcely conceivable to me that the principal of a school could pose such a threat. That is a rather dangerous concept to introduce. The Minister said the child has to be protected—

Yes, through the system and through anything that happens.

Against what? By including this final authority and making it reside in the hands of somebody outside the role of principal in order to protect the child, the Minister seems to be suggesting that the principal is not capable of so protecting that child. That is the point Senator O'Toole has been arguing – at least it is to me.

I do not have any difficulty with a requirement to consult the special needs organiser. I welcome it. The final arbiter is what bothers me.

As Senator Burke said, somebody makes a decision taking everything into consideration. The difference between me and the Minister is that he is giving the bias of the final decision to the person who is not part of the school. It would be quite in order to have a requirement to consult with the special needs adviser. Rather than "with the consent", the wording should be "following consultation with". I do not have a difficulty with that. A requirement to consult is a very good and positive thing, and it means that people have to engage with different points of view. I cannot accept anything less than that.

I cannot say any more on the issue. "Consult" is too weak in that case. Basically, we are providing an extra measure for a principal where he feels he cannot comply with the guidelines in a particular case and would want to break from them.

Principals will not thank the Minister for this.

Question put.

Bohan, Eddie.Bonner, Enda.Callanan, Peter.Chambers, Frank.Cox, Margaret.Dardis, John.Farrell, Willie.Gibbons, Jim.Glynn, Camillus.

Kett, Tony.Kiely, Rory.Leonard, Ann.Lydon, Don.Moylan, Pat.O'Brien, Francis.Ó Murchú, Labhrás.Ormonde, Ann.Quill, Máirín.Walsh, Jim.

Níl

Burke, Paddy.Connor, John.Coogan, Fintan.Doyle, Avril.Doyle, Joe.

Henry, Mary.McDonagh, Jarlath.Manning, Maurice.Norris, David.O'Toole, Joe.Ridge, Thérèse.

Tellers: Tá, Senators Farrell and Gibbons; Níl, Senators Burke and O'Toole.
Question declared carried.
SECTION 11.

Amendments Nos. 5b and 5c are ruled out of order.

Amendments Nos. 5b and 5c not moved.
Question proposed: "That section 11 stand part of the Bill."

We were told this morning that this Bill will be debated in the Dáil tomorrow, but I gather it is not on the Order of Business. As one who has been in this House until 4 a.m. on a previous Bill, is there no way we could postpone any further debate on this very important Bill until tomorrow or next Thursday?

The Chair is bound by the Order of the House this morning and that order was that Committee and Remaining Stages of this Bill be taken today.

Is it possible for the House to change the Order of Business? I remember Senator Willie Ryan telling me that, where there was agreement in the House, anything is possible.

If there is a proposal from the Leader, I will certainly accept it.

It is now very clear that this Bill will not be in the Dáil tomorrow. This House is meeting next Thursday and I suggest that, in the interest of people having the chance to consider this Bill properly, we adjourn this debate until then.

Hear, hear.

I can now inform the Minister that this Bill will not be in the Dáil tomorrow. He may have understood that it would be, but it will not. I suggest that the acting Leader, Senator Ormonde, call for an adjournment of this debate.

I have just spoken to the Whip and he has stated that he will make every effort to have this Bill debated in the Dáil tomorrow.

(Interruptions.)

I have spoken to all of the Whips tonight and I can tell the Minister that there is not a whiff of a hope of this Bill appearing on the Order Paper of the Dáil tomorrow. There certainly is no chance of it going through all Stages in the Dáil tomorrow.

I understand that, if the Bill passes through this House tonight, it will be debated on 17 April, the first day the Dáil returns after Easter.

This House is being treated with contempt.

Hear, hear.

When the Minister can come in and dictate the way that this House is run—

We conduct our business in this House as reasonably and responsibly as we can. What is happening now is wrong. No one can say that anyone has wasted any time over the last three hours. There are things that need to be said and discussed in relation to this Bill. There is no possibility of finishing this Bill at any reasonable time tonight. Of course, if we have to stay here to finish it, we will, but this is what makes politicians look foolish in the eyes of the public. It is not necessary to conclude this Bill tonight, there is no reason for it. I know that the Cathaoirleach's hands are tied by the House and I have put him in an awkward position, but what is going on here is wrong.

I have no control over these matters. The House decided this morning that this Bill would be dealt with at Committee and Remaining Stages. We will debate section 11 now.

Are we going to have a sos before we take Report Stage?

That will be determined at the end of Committee Stage.

We are back at the same issue again. I protest that what we are doing now is unnecessary and an insult to the House. It is contemptuous. I ask the Minister to recognise that everybody plans their day and co-operates with proceedings, but there comes a time when we should simply pull back a little and address this with some sort of sanity. That is not being done at the moment.

Regarding section 11, I have to accept that two of my amendments have been ruled out of order on the basis that they would increase costs. I proposed them for that very reason, to draw out that fact. The Minister had led us to believe that there was no shortage of resources available to implement this legislation. In assessing how the Minister's plans will work, it is clear that there will be a huge workload implication for school principals. Extra staff may well be required in order to implement the education plan and additional resources will be required to meet those needs. Subsection (2) is not clear. It says the principal shall make a report which I presume means the principal will be responsible for implementing the plan, or for delegating the authority to do so. This is a case of vision without provision. I am living in the hope that, when he comes to section 13, the Minister will do whatever it is that he has said will allay my fears. The way things look at the moment, that is not going to happen.

I support Senator O'Toole in everything he says. School principals have an enormous amount of work to do as it is. How on earth are they going to be able to get involved in the plan? Many parents may have reason to believe their child is not achieving the goals specified in the education plan and that a review of the plan has not occurred in the previous six months. I suspect a large number of people will request the principal to do this. A huge onus is being put on the principal which will be almost impossible to achieve. The child's plan should be independent of the school and assessing what has happened with the child's plan should also be independent of the school.

I support Senator O'Toole and I am disappointed that his amendment has been ruled out of order. This goes back to the kernel of the matter, that is, the financial resources. I hope the Minister will give some indication that extra finance will be made available. Who determines how much finance will need to be made available to implement section 11 and how much a school principal should receive in this regard? Will everything be recoupable or will the boards of management of different schools have to fund-raise by way of card games and so on? As Senator Henry said, there is already enormous pressure on the principals of schools. The Bill will put additional responsibilities on school principals and we do not want a situation where school principals must fund-raise to provide additional facilities for their schools. The Minister must give a guarantee that sufficient funding will be put in place to ensure sections of the Bill, such as section 11, are fully complied with and that school principals will have the necessary resources.

Can we have a quorum for the Minister's reply?

Notice taken that 12 Members were not present; House counted and 12 Members being present,

I want to say to Senator O'Toole that I will make the amendment to section 13.

Question put and agreed to.
SECTION 12.

I move amendment No. 6:

In page 12, subsection (1), line 4, after "child,", to insert "and a school teacher, principal or Board of Management may in respect of a pupil enrolled in the school or seeking enrolment in the school,".

I raised this issue last night. A pattern is emerging in the Bill where there is a lack of deference to the importance of the role of the school and the school authorities in many instances. Section 12 clearly and correctly allows parents, in respect of their child, to appeal to the appeals board against the statement or description of their child's special educational needs or any of the matters in the plan. If they believe that is the case, it should be followed through. I do not have a difficulty with that.

The problem is that we have drawn up legislation where the school principal can be overruled. School principals could find themselves in court defending a course of action to which they were utterly opposed but which has been imposed on them. Nevertheless, the Minister sees nothing wrong with this. What is even worse is that they cannot even appeal against such a proposal. I cannot believe the Bill was drawn up without taking these issues into consideration.

My amendment seeks to allow a school principal, school board or school teacher appeal against a decision if they believe it is the incorrect course of action, methodology, content or whatever in respect of a pupil enrolled in the school or seeking enrolment in the school. It is a straightforward amendment which the Minister should accept.

There is no question of this in regard to the principal. A case could be brought against the board of management or the Minister. The Constitution recognises that the family—

On a point of order, that is incorrect. I would like the Minister to seek advice from his legal adviser.

That is not a point of order.

I will not be told. There are issues on which I am expert and there are issues the principal—

Acting Chairman

The Senator must allow the Minister to reply. He can then respond.

If someone tells me I misled the House—

(Interruptions.)

Acting Chairman

The Minister to reply, please.

It is the board and the Minister who would be at risk in an instance of that kind.

On a point of order, that is incorrect. No law in the land can decide who will receive a writ. As long as there is space on a piece of paper, any lawyer worth his or her salt will include the name of everyone, including class teacher, principal teacher, ex-principal teacher, former teacher, ex-teacher, etc. There is a list of them in my office and in the Minister's office so he should look into the dusting cupboard and not talk down to me.

Effectively, in a case like this, those liable would be the board and the Minister. It does not matter how it is stated.

The Constitution recognises that the family is the primary and natural educator of the child and provides that the State guarantees to respect the right and duty of parents to provide for the education of their children. I am strongly of the view that we must respect the rights and choice of parents. If a parent is satisfied with the education plan prepared for his or her child, it is not a matter for someone else to take issue with it.

That said, where a teacher, principal or board of management believes the education plan is lacking, they will bring this to the attention of the parents of the child concerned and discuss it with them. The final decision as to whether an appeal against something contained in the plan should be made must rest with the parents concerned. Accordingly, I cannot accept the amendment.

I support Senator O'Toole on this. He has spelled it out several times tonight. While some of the Bill appears to be all right, it is not easy to follow. Senator O'Toole has pointed out where there could be a court case and where the school principal might hold a different view as to where a case was going. The Minister says it is only the board of management and the Minister who would be taken to court. We must have due regard for the taxpayer who has to foot the Bill in relation to this. We made the point several times tonight that the principal of the school has an important role to play.

The education plan is the core to what will happen to the child and the teacher is central to its implementation. The teacher must be totally committed to it. The education plan may have been put together by a number of people for which we have rightly allowed. We now have a situation where a parent might be happy with it, but a teacher may believe it is the wrong course of action for the child. The principal or the board of management of the school may feel the same way and it is only right that they should be entitled to appeal.

What is emerging is anti-principal, anti-school and anti-teacher legislation. Why are we getting into these difficulties? It is wrong that we cannot solve these matters as we go along. The legislation is creating ways out and giving oxygen to those who will oppose them anyway. It is also alienating those who might be open to much of it. It is making matters impossible for me and the INTO. It is legislation that could go a long way to get them right, but it has now reached a situation where it undermines the authority of the principal on which I lost the vote. The situation now is that we have changed something and that after 160 years of running primary schools principal teachers can now be overruled on an educational matter within a school. This is something school inspectors were never allowed to do over all that period of time.

Now when a teacher or principal, using his or her professional judgment, believes that the wrong course of action has been taken but cannot convince people of this, wants a final decision on the matter or to appeal it, he or she is denied this opportunity. It would be reasonable to expect that they could appeal against a proposal and have the rule run over it, but that is being denied to them. I cannot accept that is how we should do business. The Minister is running the Bill into a wall of resistance.

All I can say is that the measures are pro-children with special needs. That is the purpose of the Bill.

That is like pointing out that we have increased spending from €7 million to €70 million. What has the Minister's point got to do with what I said? Is he suggesting that giving recognition to a teacher is in some way not pro-child? Did he listen to my argument? I said that it relates to a case where a teacher believes it is not in a child's best educational interests and that it has nothing to do with the teacher, but with their judgment on behalf of the child. That is pro-child. I cannot spell it out any other way. What is happening is that the Minister is excluding the judgment call of the teacher.

Amendment put.

Burke, Paddy.Connor, John.Coogan, Fintan.Doyle, Joe.Henry, Mary.

McDonagh, Jarlath.Manning, Maurice.Norris, David.O'Toole, Joe.

Níl

Bohan, Eddie.Bonner, Enda.Callanan, Peter.Chambers, Frank.Cox, Margaret.Dardis, John.Farrell, Willie.Gibbons, Jim.Glynn, Camillus.

Kett, Tony.Kiely, Rory.Leonard, Ann.Moylan, Pat.O'Brien, Francis.Ó Murchú, Labhrás.Ormonde, Ann.Quill, Máirín.Walsh, Jim.

Tellers: Tá, Senators Burke and O'Toole; Níl, Senators Farrell and Gibbons.
Amendment declared lost.
Question proposed: "That section 12 stand part of the Bill."

There are 41 sections in the Bill and we are on section 12. The legislation is complex and is pretty wearing on all of us, including yourself, a Chathaoirligh. Much detailed work remains to be done, although we have got through a lot of it. If we were to try to finish Committee Stage tonight, would the Minister consider that to be significant progress? It would mean that we could move with a bit more speed, knowing that we could re-read the Bill on Report Stage and pick up on issues then. Does the Minister have a view on that?

No. Obviously the Minister does not have a view on the matter.

On a point of information—

There is no such thing as a point of information, Senator Henry.

May I ask you, a Chathaoirligh, if the health and safety regulations have any effect in this House? As I remember them, a 12 hour shift was the longest allowed for any worker and we have gone 40 minutes beyond that now. Twelve hours was the longest legal shift one could work, but does it apply to the Houses of the Oireachtas?

It does not.

I wish to raise an issue with the Minister. I am not sure if this is the right section but I cannot find any section under which I can raise the issue of pupil-teacher ratios.

Section 12 deals with appeals in relation to education plans.

What I wish to say is relevant to the section, but I wish to develop it a little if I can have some latitude, a Chathaoirligh. We have seen situations throughout the country where one or two students can mean the difference between a school losing or retaining a teacher. In my constituency, I have seen various strokes – I presume it is the same in every other constituency – whereby schools will take students from other catchment areas to make sure they maintain the required number of teachers within the school. If one or two students who required special educational needs were moved, in their best interests, to a different school, would the loss of those students mean the school would lose a teacher?

I do not think it applies to this section.

It does apply but I am not sure that I have the Minister's attention.

I fully understand the point the Senator is making. There is an agreement between the education partners which have made that arrangement and it is operated each year. I have established a special appeals board which will deal independently with appeals from next September onwards.

I hope that if a pupil has to leave a school in order to receive special education elsewhere, it will not result in the loss of a teacher. I hope the pupil would be counted in both cases to keep up the student numbers in school A, even if he or she was moved to school B. I am not sure if the Minister has answered the question I asked.

With respect to the Minister, I know there is an appeals mechanism. In deference to Senator Burke's point, however, the education plan can, quite correctly, move a child from school A to school B, and we all agree with that. Everyone in this Chamber has received representations from a school that drops one pupil under the numbers necessary to retain its teachers. The Minister said there is an appeal mechanism but it would be helpful to have the Minister's own views on the record. Would he be prepared to say that it is not his intention for schools to lose out when a child is directed to another school because, for the best of reasons, the necessary support structures are in another school? That would reassure such a school that it was not going to lose a teacher as well as a pupil, which can easily happen. That is the essence of the point. That would come via the education plan so, in fairness to Senator Burke, this is the only section under which this point can be raised.

As the Senator will know, special needs teachers are ex-quota, so they do not affect it.

It does not have anything to do with this section, but that is the situation.

I think the Minister has missed the point.

Yes, he has.

The principal of a school may draw up a plan for a particular student or a school. If that school is going to lose one or two students who will have to go to a different school, it could well influence the way the plan is being written. If, under such a plan, one or two students had to attend another school, I hope the first school would not lose its existing teacher entitlement. I am afraid that it would influence the way in which the plan may be written. This is very serious because we have all seen situations where schools have lost a teacher because of the loss of one or two students. In this case, it would be in the best interests of the student to have a guarantee from the Minister that if for some reason a special needs student has to move to another school, it would not affect the pupil-teacher ratio, thus avoiding the loss of a teacher from the original school attended by that pupil. I am seeking such a guarantee from the Minister. Perhaps it could be tabled as an amendment on Report Stage.

I appreciate the point the Senator is making, but he has made it three times.

I have not received the answer I am looking for. I want a guarantee from the Minister that if one, two, three, or whatever number of students have to leave a particular school to attend a special needs school, that will not affect the pupil-teacher ratio of the first school nor lead to the loss of a teacher in that school.

I fail to see the relevance of Senator Burke's query in relation to section 12. I do not know why we are discussing this matter at all to be honest.

There is no problem in that case. It does not exist as a case because special needs teachers are dealt with on an ex-quota basis.

I am not talking about special needs cases.

Can I put it in three sentences? If a 40 pupil school, which is entitled to two teachers, drops to 39 pupils it will lose a teacher. It may have nothing to do with this Bill.

Unless there are very special circumstances.

I do not know. I am talking about it in terms of the Schedule.

No, the Schedule specifies a growth area or special circumstances.

Yes but we are talking about falling numbers.

So are there some special circumstances in which the Schedule does not apply?

I am just saying that there is a special circumstances clause.

Perhaps that is the clause we need to invoke. If schools are in danger of losing a teacher because of a reduction of one in the enrolment, can we ensure that child can continue to be counted on the school enrolment for the purposes of determining the school's staffing needs? If a child with special needs must leave his or her school because the educational plan directs him or her to another school, can that child continue to be counted on the enrolment of the original school to ensure it does not lose any staffing entitlement because of the transfer?

We will consider the ramifications of that.

The Minister has not answered this issue to our satisfaction. It is a serious issue and it will affect schools throughout the country. If a special needs child must attend another school, surely that should not affect the number of teachers in the original school. It is a small thing to accept.

The effect of the Bill will be to increase numbers in schools and will be beneficial to them. In the event that the rare case mentioned by the Senator arises, I will examine it.

Question put and agreed to.
SECTION 13.

Acting Chairman

Senator Manning's and Senator Burke's names should appear with amendment No. 7 in the name of Senator O'Toole.

I move amendment No. 7:

In page 12, subsection (1), lines 28 and 29, to delete ", with the consent of the Minister for Finance,".

This is the core of the legislation, the lifeblood that provides the wherewithal to implement it and the conduit that will provide resources for the problem. There are many complications in this section and one way of dealing with them is through my amendment, the effect of which will be that the Minister will have complete authority and will not have to seek the consent of the Minister for Finance. It is my understanding that this requirement is unnecessary under the Ministers and Secretaries Acts. It applies to the budgeting aspect.

The problem is that there is no indication that money will be made available for individual schools or pupils. What is missing is some form of words stating that moneys will be provided for devising, implementing and reviewing the implementation plan and all relevant costs or a form of words such as "all the relevant costs involved in the implementation of the Bill". That is what is missing from the Bill and it creates doubt in our minds. It is clear in the Minister's mind but not in ours.

My amendment is not the only way to deal with this. There are certainly four or five ways of dealing with it and I, Senator Manning and Senator Burke are open to any appropriate wording which makes this more solid. This goes back to the Minister's blank cheque speech.

And the Senator's ATM speech.

If we want to spend between €17 million and €70 million, this is how it will be spent. The Minister could insert a form of words to give reassurance and this would not involve additional cost. I would like to hear his views on it.

The section reads:

The Minister shall, with the consent of the Minister for Finance, out of moneys provided by the Oireachtas, provide for the payment to or in respect of schools and their employees such moneys as are necessary for the provision of appropriate education to children with special educational needs.

I said to the Senator earlier that for the purposes of clarity we would table an amendment on Report Stage stating as follows:

In page 12, line 32, after "needs" to insert "in accordance with the provisions of this Act".

This would make it clear that it is to meet the provisions of the Bill. I trust that meets the concerns of Senators.

It goes a long way towards doing that. I will have to examine the wording but I recognise that this constitutes a great deal of progress. I was seeking for the Bill to be dependent on the requirements of the child but I recognise that it is based on those requirements and that the implementation of its provisions will be in response to those. This amendment will go a long way towards ensuring the Bill is demand-led and that it is not a case of doing what we can with a set amount of money but deciding what to do and providing the money to do it. That said, I do not like the reference to the Minister for Finance but I presume the Minister is stuck with it.

Like Senator O'Toole, I do not like the reference to the Minister for Finance. However, what the Minister has outlined goes some way towards guaranteeing the finance to deliver the initiatives in the Bill. As Senator O'Toole correctly pointed out, this is the nuts and bolts of the Bill. It is all about money. The Bill is not worth a damn if extra funding is not provided to implement it. It will cost money to deliver and I hope the Minister's amendment will guarantee the extra funding necessary to put the provisions of the Bill in place for all schools.

I understand the Minister indicated he would accept the other amendment.

Amendment, by leave, withdrawn.

I move amendment No. 7a:

In page 12, subsection (1), line 31, after "of", to insert "adequate and".

Amendment agreed to.
Question proposed: "That section 13, as amended, stand part of the Bill."

This is an area that fills me with optimism. The key to achieving the objectives of the Bill lies in early identification, analysis and intervention. If this happens, the proper programmes and procedures can be put in place to deal with a child's needs.

How soon does the Minister expect the recommendation of the Cromien report that the number of school psychologists be increased to 200 to be fulfilled? This is important. Does the Minister intend to place the national educational psychological service on a statutory basis? Will there be a separation of functions between those who deliver the service and those who assess it? In the old days we did not have the insights we have now. There was an idea that one size fitted all and the people who delivered the service assessed progress. However, that will not do in future. Will there be a separation of functions? Will those making the assessment be different from those delivering the service? That is central to the success of what I believe to be an extremely good Bill, on which I compliment the Minister.

Yes, there is a separation of the two functions. In relation to the Education Act, the NCSE can be established as an executive agency on an interim basis. It has increased from 44 to 100 psychologists, there are interviews in progress which will bring the figure up to approximately 160 and we have approval to reach 200 by the end of this year. The original aim was to reach 200 psychologists by the end of 2004, but that has now been brought forward.

I thank the Minister.

Question put and agreed to.
SECTION 14.
Amendments Nos. 8 and 9 not moved.
Question proposed: "That section 14 stand part of the Bill."

The Chair has ruled two of my amendments out of order. While I would not, for one moment, challenge the ruling of the Chair, I would like to ask in what way my amendments would involve a potential charge on the Exchequer.

Acting Chairman

The Senator may speak on the section, but not on the Chair's ruling.

That is fair enough. Somebody has to determine the resources required.

The Senator got that point in on section 13.

My point is that somebody should determine the resources, apart from claiming them, which is the aspect that has been ruled out. There should be a resource assessment or an audit on any proposal as to what a school needs. This becomes part of the education plan of the school and is a huge additional burden on the school, which will be discharged by the principal, somehow or another, to make sure this informs and infuses the curriculum of the school. Unless these matters are to be regarded as purely aspirational, they require to be implemented.

The section states the board of management of a school shall make all reasonable efforts to ensure the special educational needs of the students are met – this is centred very closely in the Bill and would be part of the earlier discussions on costs; co-operate to the greatest extent practicable with the council and its employees – that is not unreasonable; ensure all relevant teachers and other relevant employees of the school are aware of the special educational needs of students – that is the first additional task somebody has to perform to ensure people are properly informed and advised to work to the system; it is rather like dealing with immigrants or refugees and involves creating a certain approach; ensure teachers and other employees of the school are aware of the importance of identifying children who have special educational needs – that is an additional function but part of a teaching function and relates to direct involvement in the curriculum; inculcate in students of the school an awareness of the needs of persons with disabilities – that smacks of the idea that, if there is a problem in society, it should be sorted out in the schools.

There is nothing wrong with what is stated in the section, any more than it would be wrong to say we should inculcate in students of the school an awareness of the needs of immigrants or people from County Kerry or whatever. There are all kinds of possibilities as to what one might seek to inculcate in students to ensure there is no discrimination against minorities who suffer badly from the system.

I hope the Senator does not feel oppressed.

Section 14(1)(f) requires the board of management of a school to ensure that, as regards admission to and participation in the school, a policy of maximum accommodation for children with special educational needs is in place and implemented – that is quite a significant issue. For example, it would be necessary to ensure doors are wide enough to accommodate a wheelchair. All these requirements have to be attended to. It is very clearly stated that they are in addition to, and not in substitution for, any other enactment imposing duties on boards of management of schools.

My point is that there is an additional burden of responsibility, including an additional practical burden, on schools. Where are the resources to implement this? The simple answer is that the school principal will be given the authority to do it – the same school principal whose authority we have undermined in an earlier section and whom we do not trust to protect our children. That is the person to be charged with this responsibility, according to the Bill.

The management authorities of schools will question the imposition of this additional work, without any consultation with them. While I do not disagree with the provisions of the section, there is a resource deficiency. The Minister should reassure boards of management, having regard to what he said on section 13, that he will see to it that resources are available. In his own words, this is a provision of the Bill which should receive the appropriate support and resources under the legislation.

Yes. Section 13 covers that matter. It is specified in the amendment made at the request of Senator O'Toole. I agree it is a good idea to assess the needs nationally after the Bill is enacted. There has been a huge advance in meeting needs, but, looking ahead, I agree with the Senator.

Question put and agreed to.
Section 15 agreed to.
SECTION 16.

Acting Chairman

Amendments Nos. 9a and 9b are cognate and may be discussed together.

I move amendment No. 9a:

In page 13, subsection (1), line 23, after "child" where it firstly occurs, to insert "and in consultation with the school principal".

I agree with the substance of the amendment. However, with the agreement of the House, I consider that an alternative form of words would be more appropriate.

Amendment, by leave, withdrawn.
Amendment No. 9b not moved.
Government amendment No. 9c:
In page 13, subsection (1), line 23, to insert, after "child", "and having consulted with the principal of the school which the child is attending".

This wording meets what Senator O'Toole is seeking.

Amendment agreed to.
Government amendment No. 9d:
In page 13, subsection (2), line 33, to insert, after "child", "and having consulted with the principal of the school which the child is attending".

I thank Senator O'Toole for raising the points incorporated in the amendment.

I am glad the Minister has taken those points on board. This is quite significant in terms of what is required under the Bill. It brings the situation back into the heart of the school, giving appropriate recognition to teachers and adding to the quality of the provisions being put in place.

Amendment agreed to.
Question proposed: "That section 16, as amended, stand part of the Bill."

Section 16(7) states that "the persons who shall be concerned in providing the programme concerned shall be a person who is a registered teacher (within the meaning of the Teaching Council Act, 2001)." This is the core of how the educational provision is delivered. The people recognised under the Teaching Council Act have particular authority and responsibility and they have professional views of their own.

The recognition here will not undo the problems that we have created earlier by not allowing them to appeal against what is in the plan. It is stated that they will be involved in its provision, but they do not have the authority to appeal against it. If we go to the trouble of recognising teachers' qualifications and importance, we should also be prepared to give them the right to appeal. If they come to the conclusion that it is being done in the wrong way and if somebody from outside comes in to evaluate progress six months later, they could find a situation that is all over the place. A person could be implementing a programme in which he or she has no faith and it will be evaluated by a person who will not be happy with what is being done and so on. There is confusion and a contradiction in the Bill. I do not object to the section, but I want to use it to reflect on the other issue.

We discussed that item at length earlier. Teachers are centrally involved in the legislation and fully recognised.

Question put and agreed to.
Sections 17 and 18 agreed to.
SECTION 19.
Question proposed: "That section 19 stand part of the Bill."

I have gone through the functions of the council in detail and do not object to any of them. I have tried to look at it from the point of view of where they may be lacking. Section 19(2) states: "The Council shall have the power to do all things necessary for or incidental to the performance of its functions." That is a very solid support clause to ensure that if something is left out, there can be redress. I am sure things will come up that we have not considered, so it deals with all the issues.

I would like to hear the Minister's view on where paragraph (i) stands in regard to the connection between health and education. This problem is always raised when I meet with groups involved in the education side of children with disability. There is a lack of interlinkage between the Department of Education and Science and the Department of Health and Children. In this case it is doubly so because we now have this new board which will have authority over certain aspects of what is happening in schools.

We are agreeing to do that but do we know how it will impact on the Department of Health and Children? What happens if the education plan says we need some kind of therapist as part of the requirements of a child's needs and no therapist is available? The Minister will no doubt refer to the €70 million and the number of additional therapists he has approved but that does not deal with the problem. If a therapist is required, what kind of pressure can be put on the health boards to make such provision?

Anyone who has dealt with health boards will know how difficult it is to get anything from them. There are things to which I can compare them that might be unparliamentary, to say the least. There is a gap. The council can review the provisions made by the health boards and can publish reports on the results of such reviews. They may include recommendations on the manner in which such provisions could be improved. However, it is very weak. I am not saying I can do something about it here but I would like to know on what basis we decided not to give the council the authority to make provision. The difficulty goes back to section 13 where it says that it is entitled to moneys to ensure the provisions of this Act are implemented. In this case it does not have power over what needs to be provided. It would be a worry if some of this money could go to the health boards. What kind of lever can it apply to health boards?

Like Senator O'Toole, I do not have any great problem with any of the functions of the council but paragraph (i) is somewhat loose and the Minister needs to elaborate in regard to the difference between the functions of the health board and the Department of Education and Science or the council. Many of us have had dealings with health boards and specific guidelines are necessary when there is an overlap between different Departments.

I too have a problem in regard to section 19(1)(c) and the co-ordination of the work between the health board and the education system. Education in schools operates up to 4 p.m. but the structure of the health board is on a different format. In the past it has been difficult to get such co-ordination, so I urge the Minister to spell it out more clearly. The health boards need to be made more aware of their duties to ensure that educational plans can be implemented.

Senator Ormonde, with her experience in education, said it all for me. I have experience of the health boards and this needs definite expansion and clarification so that we are sure we are properly covered.

There is a typographical error in paragraph (i). Section "13" should read section "16" and I will propose an amendment on Report Stage to correct it. This is explained in section 36, which sets out the duty of health boards with regard to special education. It provides that the council may request a health board to take specified actions to assist it or to ensure the preparation or implementation of an education plan. Before making a formal request under this section, the council must discuss the matter with the health board, which will generally accede to a request made under this section, unless it feels the request is unmerited or that compliance is impossible. If the health board decides it cannot comply with the request of the council, it must state its reasons and the council may appeal that refusal. The ultimate arbiter in any dispute relating to these requests is the appeals board, which has the power to compel the health board to comply with the council's requirement if the appeal is considered reasonable and upheld.

I do not know what the Minister is quoting from.

We are on section 36.

I hope I am not jumping ahead of other business, but I ask the Minister to expand on section 36(3)(b). I am not quite sure what the practical implementation of the advice referred to entails. There is, again, a subsection regarding financial resources.

Subsection 3(b) provides that advice to the Minister shall take into account the implications of that advice for the resources, including financial resources, available to the State in respect of the provision of education and the practicalities of implementing that advice. That is good practice. We are creating duties and rights and in that context the council will naturally be independent in the administration of its day to day functions, though not in relation to policy. It will be able to act independently, but must have regard to available resources.

The Minister has a duty to provide the resources which are required, within reason, for assessed needs. Those resources will be huge when compared to those provided in the past and at present.

Senator O'Toole raised the matter of the lack of available people to carry out assessments and to provide speech and language therapy. The sections of the Bill will have to be introduced on a phased basis because once they are in law their provisions become absolute rights. The NEPS is being built up as a matter of urgency and I have approved the recruitment of another 75 speech and language therapists. That problem is one for the health boards to resolve, but we are going to provide for the rights and we will have to find ways of meeting them.

I thank the Minister for his explanations, but it means that this section is aspirational.

No, it does not.

When advising the Minister, people will be conscious of the implications for the national finances. What does that mean? Does it mean that they should not advise him to do something that would cost too much? What will be read into the provision is that they are not to advise anything that would be embarrassing.

Not really. There is a separate requirement to decide what the needs are and to then meet them. That has to be done, but in doing so there should be prudence, which is natural and normal. There is nothing to worry about because the matter is well covered elsewhere.

Question put and agreed to.
SECTION 20.

I move amendment No. 10:

In page 17, subsection (2), line 6, after "disabilities", to insert "and shall include

(a) at least one person nominated by the National Parents Council,

(b) at least one person nominated by the Irish National Teachers' Organisation,

(c) at least one representative of the following groups or services,

National Education Psychological Service

School Management Authorities

Colleges of Education.".

I was really disappointed with the way this section was worded and with the difficulties it could create. It provides that the council will consist of a chairperson and ten ordinary members who shall be appointed by the Minister. The only requirement of them is that they have a special interest in, or knowledge which relates to, the education of children with disabilities. The Minister is to have regard to gender balance when selecting the board.

I may have to get into a long discussion on this, but it is preferable to say that the educational partners should be statutorily represented on the council, not just on the advisory body. I would be horrified if there were not a preponderance of educationalists on the board of a national special education council. They need not necessarily be teachers, but they would have to be people with an educational background. People will recognise that my amendment will give the Minister flexibility and not close down the membership. Of the ten, one should be nominated by the National Parents Council, one by the Irish National Teachers' Organisation and one each by the national education psychological service, the school management authorities and the colleges of education. I had intended that each of the last three would be represented, but I drafted the amendment ambiguously. I certainly did not want to demean the role of school management, which I would certainly wish to have represented.

There should be one person representing parents, one representing teachers and one representing school management, as well as the NEPS and the colleges of education, which are closely involved. That does not close down the membership of the board as there are still other places available. This is crucial as there is enough trouble with this Bill as it is. People working daily in this area have to be able to look at it and see that they are represented and this amendment provides the opportunity to give them that. I do not say that it should be included in the Bill in its present form, but all the people who are important to the implementation of the legislation should be represented in it.

On a point of order, I have read the Official Report of this evening's proceedings and I realise that in the course of a heated exchange I accused the Minister of telling a lie. I categorically withdraw that accusation and I apologise to him.

Thank you.

I take the points made by Senator O'Toole. It is very important to have people from the educational sector on this council, but it is also important that people with disabilities are represented.

Absolutely.

The parents of those with disabilities should also be on the board and I will be putting down amendments to that effect on this section. Such provisions may be in the Minister's heart, but we need them in the Bill because its provisions, as drafted, have been very much resented by those who have been in contact with me since the Bill was published 36 hours ago. It is most important that we try to rectify this section.

I support previous speakers in relation to the composition of the board. I do not mind who is on the board, but it should be enshrined in statute. People with disabilities and their parents should be represented on it. School principals should also be represented because the Bill confers a lot of power and much additional responsibility on them. The health boards also have a role to play and should be included. The composition of the board should be set down in statute. Perhaps the board should be enlarged to include some of the bodies mentioned by Senators.

It is designed to be a reasonably tight, effective board to do the job. That is the reason it comprises the chair and ten members, a total of 11. Two extra members would bring the total to 13. To enlarge it any further would make it too broad to be an effective, businesslike board. A consultative forum will also be established, which will provide for much wider involvement. If more Senators spoke, they could suggest more groups to be represented because this is a vast area. As the Bill applies to primary and second level education, for a start, three teachers' unions are involved.

That is fair enough.

I know the Senator's union is the most important of them, but he will appreciate that there—

One certainly does not find too many in that area in the other unions.

We tried to find a formula, but I do not want to include names in it. I accept that parents of people with disabilities have to be on it, as well as people from other groups. The idea is to have the board as a reasonably expert group and to have a broader consultative forum, which is provided for in the Bill. I will try to bring forward an amendment on Report Stage that is consistent with this idea.

Progress reported; Committee to sit again.