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Seanad Éireann debate -
Wednesday, 27 Mar 2002

Vol. 169 No. 16

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

SECTION 20.
Debate resumed on 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.".
–(Senator O'Toole).

I add my voice to those who made the case for having parents' representatives on the board, as opposed to the consultative commit tee. Parents of disabled people have insights into the condition, which teachers could never hope to have. I taught at three levels in my teaching career, but despite that and the professional training I received, I do not have an understanding of, for example, autism and many other conditions. If we are to get insights that will enable us to adopt the proper approach and procedures, we must have a strong parents' representative on the board. It is essential to the success of the Bill.

I understand the people who deliver the service must be represented. However, it was late in the day that we sought the involvement of parents in education. We were even late bringing boards of management on board. For too long we excluded the people concerned and their expertise, born of their daily raw experience on the ground. I strongly appeal to the Minister to ensure parents of children with disabilities will be included, not on the consultative committee, but on the council.

I will not press the amendment. I wish to defend the Minister. I remind Members that the levels of representation which could be sought would make for an impossible council. Look at the deliverers of the service – the same argument could be made about teachers. The autism spectrum contains at least 12 different categories and that is just one section of special education. I accept the argument that all people should be represented, but it would be impossible to have teachers representing all special education areas, or parents. It just cannot be done.

It is an education needs service. A structure has to be put in place which is efficient in the delivery of the service. The people involved will have to take advice. There does not have to be a teacher on it who has taught in a particular area of special education or a parent who has a child with particular needs. We need a parent who has a child with a disability and a teacher who teaches children with a disability to ensure the expertise we put together is properly focused.

I agree with the Minister. I would be slow to make the main committee much larger and agree with the concept of a forum. It is a second tier and, in that sense, a subordinate or subservient tier. Nonetheless, it is a statutory way of giving people an input. It is a clever device to make progress. I look forward to Report Stage when we can examine this further. I agree with the objective of the points made by other Members, but I know, from numerous attempts, that it cannot be done. When this is implemented and if there is a teacher or even three teachers included, I will still have 25 other categories stating there is nobody representing their area of teaching. They are never going to be there. We have to get the proper people who will have an open and broad approach to focusing on a problem.

Amendment, by leave, withdrawn.
Section 20 agreed to.
Sections 21 to 23, inclusive, agreed to.
SECTION 24.

I move amendment No. 11:

In page 18, subsection (1), line 36, after "appointed", to insert "shall have an appropriate educational qualification and".

This is a substantial and fundamental issue. It relates to the special educational needs organisers, who they are, where they come from and what their qualifications are. It is a simple point and I hope I am pushing an open door with this amendment. The organiser is dealing with educational needs and I am asking that the legislation require them to have an educational qualification. I could have stipulated that they be a teacher, but have made the requirement as broad as possible. However, the qualification has to be educational.

Like Senator O'Toole, I believe the qualifications of the special educational needs organisers should be clarified. The Minister should spell it out.

I, too, have reservations about the wording of the provision. It needs to be spelled out. Naturally, we are anxious to ensure the people appointed have the appropriate qualifications, given the delicacy of the area in which they will operate.

I accept the thrust of the amendment. I propose that it should read:

In page 18, between lines 37 and 38, to insert the following subsection: "(2) Each special educational needs organiser shall have such qualifications, expertise or experience relevant to the education of children with special educational needs as the Council considers appropriate.".

I take it the Minister will introduce a formal amendment on Report Stage.

Amendment, by leave, withdrawn.
Section 24 agreed to.
Sections 25 to 32, inclusive, agreed to.
SECTION 33.
Question proposed: "That section 33 stand part of the Bill."

I would like a date inserted in this section on Report Stage. The Minister will be aware that an establishment date was included in the first section of the Education Act. This was also done in legislation recently. It would be use ful to show a degree of commitment and I see no difficulty with this. The Minister said that he wants this to be operational as quickly as possible. One never knows what will happen with the electorate. The electorate can get into a mood and it might decide to put a completely different Government into office. Who knows?

To ensure the Minister leaves his mark on this area, I will bring forward an amendment on Report Stage on which I will take advice from him. I do not want to push it through tomorrow, but I want a date included, whether it is six months, a year or whatever. The legislation should state that the Minister shall by order appoint a day – perhaps some point not later than a certain time after the enactment or the signing of the Bill – to be the establishment day for the purposes of the Act. I am interested in the Minister's view on that.

I will look at that and I appreciate the point. The Senator will appreciate that there are a number of different sections and it may have to be done on an age basis, for example.

Yes, that is fair enough. It makes sense.

I agree entirely that it should be done as early as possible, but there probably should be some limit on the time. We will have a look at that for Report Stage.

Question put and agreed to.
Sections 34 and 35 agreed to.
SECTION 36.
Question proposed: "That section 36 stand part of the Bill."

Section 36(3)(c) states having regard to the resources available to the health board, it is not reasonable for it to comply with the request. Section 36(6)(a) further states that the appeals board may allow the appeal and direct the board concerned to comply with the request, the subject of the appeal. From where will the funding come? If the health board states, having regard to the resources available to it, it is not reasonable for it to comply with the request, where does it get the funding if the appeals board directs it to go ahead? There is a contradiction where it states that the health board cannot go ahead because of a lack of resources, but the appeals board may direct it to go ahead. That could put an additional burden on the health board to find resources. Can the health board, in turn, go to the Minister for Finance looking for funds or will the extra funds be provided under section 13? If that is the case, the Minister might have to insert an amendment in this section so that it would be covered and proper funding would be available if an appeal was successful.

The only comment I want to make is that however bad things are in education for people with disabilities, they are much worse in health.

Yes, it is a tragedy.

I had a most unpleasant experience on Monday last when I attended a meeting about medical litigation. A doctor said to me that when they had seen the appalling situation for people with disabilities in this country, they were not at all surprised that people tried to sue to see if anything could be done in the case of birth injuries and if blame could be attached. The parents said there was so little else they could do for their children that they felt they had to take that opportunity. The Minister may think things are bad in education, but they are much worse in health.

That brings me back to my point about how closely the Department of Education and Science and the Department of Health and Children must work together. We all know the experience of the Department of Health and Children and how it does its business. It works very differently from the Department of Education and Science. Teachers work differently from the way the health services work. It goes back to the original point about how we draw up a plan of co-ordination to make sure that, whatever the council says, the money must be available to implement individual education plans.

This section sets out the duty of the health boards concerning special education. It provides that the council may request the health board to take specified actions to assist the council or ensure the preparation or implementation of the plan.

Before making a formal request under this section, the council will discuss the matter with the health board. The health board will generally accede to the request made under this section unless it feels the request is not merited or compliance is impossible. If the health board decides that it cannot comply with the request of the council, it must state its reasons and the council may appeal the refusal to comply.

The ultimate arbiter of any dispute in relation to these requests is the appeals board. The appeals board has the power to compel a health board to comply with a request from the council if it upholds an appeal. The health board can be directed to make the provision. I will have a look at that issue before Report Stage in terms of the possible deletion of section 36(3)(c), “having regard to the resources available.”

I have a recommendation for the Minister. I will not repeat what has been said about the health board, but the section would be infinitely strengthened if the Minister substituted the word "will" for "may". The word "may", which appears twice in the section, is too vague and it leaves too much leeway to health boards not to comply with the requirements of the Bill. This is a matter for Report Stage. However it is done, we must put the strongest possible requirement in law on the health board to play its part in making the objectives of the Bill a reality. That could be the Achilles' heel of this very good legislation. I ask the Minister to substitute the word "will" for "may".

The Senator must mean to use the word "shall" instead of "may". "Shall" is the legal term.

Does the Minister take my point?

The word should be "shall", the legal term, instead of "may". Can the Minister see how "may" leaves too many loopholes?

I thank the Minister.

I thank the Minister for stating that he will have another look at this section before Report Stage because section 36(3)(c) could let the health board off the hook. If it has no resources, it could quote this section. In the event of it stating that it has no resources and the appeals board making a decision that it must comply, the issue of funding will arise. Who will provide it? Perhaps there is a way out for the Minister under section 13 or perhaps the Minister the Finance will come into play. I thank the Minister for deciding to have another look at the section.

Question put and agreed to.
Sections 37 to 41, inclusive, agreed to.
Schedule 1 agreed to.
SCHEDULE 2.
Question proposed: "That the Second Schedule be the Second Schedule to the Bill."

Schedule 2 contains the description of the job of the director. I missed the section which dealt with the employment of the director. I thought the Department of Education and Science might play a stronger role in respect of the recruitment of a director. It would seem the ultimate power really lies with the council. The council will be made up of a chairman and ten or 11 other people. The Department of Education and Science should play a stronger role in the recruitment of the chief executive officer of the council.

I understand that we may appoint the first director and that the council will be responsible subsequently. It is obviously a very important post and will be very widely advertised. In terms of finance and resources, I have got approval already to go ahead with that appointment. I can do that administratively anyway. It is not as if I am undermining anything. The legislation will make it statutory. We will be proceeding very shortly with the appointment of the director under the normal public service appointment arrangements.

The first appointment will be made according to public service appointment procedures.

Question put and agreed to.
Title agreed to.
Bill reported with amendments.

I thank the Minister and his adviser, and all the Senators, for taking us through this tedious stage tonight. It is a very detailed Bill, which will work very well and I am very pleased that it will be very satisfactory.

I also thank the Minister. I thank him for conceding additional time to take Report Stage. This is a very important Bill and it is putting serious responsibility on principals of schools. I am delighted we have an additional week to look at the Bill and consult widely with all the other organisations, which have the best interests of this Bill at heart. I thank the Minister for allowing us the additional time.

I thank the Minister and his officials for giving the leeway he gave us during the course of the debate. Last night on Second Stage I had some criticisms of the Bill, mainly related to the resources available. Certainly, the Minister has outlined the position and I am very happy with the way matters have proceeded. I thank all the other Senators who contributed to the debate.

I also thank the Minister for being so accommodating and helpful this evening, as well as his officials. This has been a disaster area and it is essential that we try to get it as right as we possibly can. One has seen the court cases we have had and the dreadful emotional response there was when people realised how little was being done for people in this area.

The Minister understands why all of us are so concerned that the Bill, which is an excellent framework, should be as good as possible coming out of the Houses of the Oireachtas.

I thank the Senators for their contributions. I hope they will appreciate my anxiety to have the Bill passed because it is hugely important. I will not explain how difficult it was to get to this point and hence my great anxiety to see it pass into law. I hope I will have the opportunity later in the other House to complete the passage of the Bill. I know people have different views about what might happen at that stage.

Much agreement and negotiation have taken place behind the scenes. As Senators will be aware, resources are very important. Coming towards the end of the session, I had difficulties in that regard.

I thank everybody. I thank Senator Manning for coming in and saying what he said at the time. In effect, right up to the latest stage today, the Whip was making every effort to have Second Stage in the other House tomorrow. I was anxious to reach a point where we could do that. The pressure on the staff of the House, apart from anything else, has been very considerable and I appreciate that. They have been doing a fantastic job over recent weeks because of the volume of legislation. In respect of this Bill, they have been doing a great job.

I am happy the Seanad will sit again next Thursday and that we can complete the Bill then. Again, I thank everybody.

When is it proposed to take Report Stage?

Tomorrow week.

Report Stage ordered for Thursday, 4 April 2002.

When is it proposed to sit again?

Tomorrow at 10.30 a.m.

The Seanad adjourned at 12.30 a.m. until 10.30 a.m. on Thursday, 28 March 2002.

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