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Seanad Éireann debate -
Thursday, 4 Apr 2002

Vol. 169 No. 18

Education for Persons with Disabilities Bill, 2002: Report and Final Stages.

Before we commence, I remind Members that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment, and that each amendment on Report Stage must be seconded.

Government amendment No. 1:
In page 4, line 6, after "benefit" to insert ", to the extent that a child without such attributes can benefit,".

I join Senators in paying tribute to Senator Tom Fitzgerald with whom I very often had the experience of working on the ground, or on the sea, as Minister for the Marine and Natural Resources. His contributions in that area were extraordinary. His interest in marine issues did not lie in Dingle or Kerry alone, he was interested in all such areas throughout the country. He constantly represented those who lived by, and on, the sea from a leisure and fisheries point of view. I wish him a speedy return to good health.

This amendment arises from a suggestion made by Senator O'Toole on Committee Stage. The focus of the Bill is such that a child with special educational needs cannot benefit from the ordinary school programme in the way the child without such needs can. While this is implicit in the definition as drafted, it is desirable it is made explicit to remove any possible doubt in this regard. The amendment, as drafted, will achieve this. I thank Senator O'Toole for his help in this regard.

I did not mean to gazump the Leader of the Opposition. I welcome this amendment which, as the Minister has put in context, is in response to a detailed debate on Committee Stage led, in particular, by Senator O'Toole who is unable to be here as he had to attend a very important meeting. He asked me to welcome this amendment on his behalf. The 14 Government amendments tabled reflect the intensity of the debate on Committee Stage. We, on this side of the House, are very glad the Minister has taken on board so many of our amendments which materially alter and improve the Bill.

It is one of the benefits of Seanad Éireann that when legislation is introduced in this House for the first time we are able to bring the kind of expertise which Senator O'Toole has, coming from the education area. If I may humble myself, I taught for a while in Trinity College and have taken enormous interest in this issue. That the Minister has introduced this amendment is very much to be welcomed. I hope there have been parallel discussions with the interest groups – this matter has been repeatedly raised by Senator Manning.

I welcome this amendment which makes clear that the interests of the child are paramount and that the child must not be seen in a negative sense but rather in a positive sense. I appreciate that the Minister has accepted this wording which is virtually exactly as proposed by Senator O'Toole and supported by me during the debate.

I welcome this amendment and the series of amendments tabled by the Minister for Education and Science, Deputy Woods, who clearly and honestly listened to the points raised by Senators O'Toole and Burke last week. The Bill has been significantly changed by the inclusion of these amendments.

However – I do not wish to seem churlish – I regret we are taking this Bill today. While the Minister has gone part of the way and listened to the points raised from a teaching and educational point of view, he has not listened to the views of those with disabilities. The National Association for Mentally Handicapped of Ireland has very fundamental problems with this legislation. The Minister, before coming to this House to take Report Stage, should have consulted with the association and he could have been as generous with it as he was with Senators O'Toole, Burke and Norris in this House last week.

I welcome the way the Minister has handled the points raised last week. I welcome all the amendments although I will not speak on any more of them. I regret we could not have waited until the required consultation took place.

I welcome this amendment. Like Senator Manning, the representations received from the various societies and associations – parents of people with disabilities or people who are disabled themselves – leaves me wishing the Minister had waited to hear some of their points. The position remains whereby "a child" means a person not less than three years of age and not more than 18 years of age. Many of those who contacted me on this Bill are particularly anxious that the education of the child should begin immediately the disability is discovered. They are also anxious about the provision whereby a person is merely referred to the health boards having reaching 18 years of age. This amendment improves the Bill.

I will not delay the House by repeating what has been said. When I first became a Member of this House I was not too sure about how I would look upon Bills because I did not have legislative experience. Coming from a business background, I decided to look for the customer in every Bill, be it a health Bill as it relates to a patient or a road traffic Bill as it relates to users of the roads.

The Minister has, in this case, responded to the customer from an educational point of view in particular. Due to the time limits, I welcome the amendments tabled by the Minister. It is a reminder of the benefit of this House and of being able to take a second look at things. However, I agree with Senator Manning's concern that, in the limited time, it is unlikely that anything more than this could have been done. Questions remain to be answered and I hope we can return to this in the future.

Senator Henry touched on the question of pre-school education. There is a strong case to be made for pre-school education in any form but an even stronger case for pre-school education for those who suffer from disabilities. Families who have this disadvantage and the trauma that goes with it would benefit from this and serious attention should be given to this issue in the immediate future.

In the last week I have been very critical, and rightly so, of a number of issues. However, the progress that has been made on school-based education is acceptable to me and this meets some needs in terms of delivering education through the school system. I do not know what consultation took place with other groups, but since the consultation with the INTO last week I appreciate the efforts that have been made to deal with the six or seven substantial problems I had with the Bill. I accept that progress has been made in this area.

This is a very narrow Bill, but we must accept that it is to do with school rather than education from womb to tomb or education for life. Whether more should be done is another issue. It is somewhat impractical to consider delivering an education plan through teachers at school level for children under the age of three years. That is not to say that there should not be appropriate provisions for younger children with disabilities but I am not sure that the education plan could be delivered effectively to those younger than three years. Education does not finish at 18 years of age and I have spoken regularly about this outside the House. When the Constitution mentions the right to primary education, what it means is the right to a fundamental education and there is no age limit involved. This Bill is useful within the narrow confines of what can be delivered in schools for children aged three to 18 years. This should be seen as meeting one level of need and we should now look at the wider area of people with disabilities beyond the age of 18 years. We should have a Bill to deal with their needs as this Bill does not do so.

This Bill recognises the input schools can have, which, in a way, has never been seen before. It recognises the importance of the school in developing an educational plan and the importance of getting teachers involved. Last week Senator Burke and I spoke on a number of occasions about the problems of having this plan implemented at school level. The relationships were a little complicated but this has now been addressed. More importantly, the Bill also deals with making money available at school level for implementation. I will support all the amendments today. They represent progress, but there are still aspects of education for persons with disabilities which are not dealt with in this Bill.

I thank the Senators for their contributions. The discussion has highlighted the fact that this is a Bill about education. I am not attempting to resolve all the other problems that exist, but I am specifically attempting to resolve the problems with education. This Bill provides what many parents have long demanded: close involvement in decisions on their children's education, a statutory right to assessment of needs and a statutory duty for the State to fulfil these needs, individual education plans, early intervention, integrated education, continuing education and training for adults with special education needs and co-ordinated action from the education and health agencies. It goes a long way towards meeting these requirements. It is not perfect but it is a huge leap forward in terms of statutory provision for children within the education system and for adults when they go beyond that stage. Section 15 deals with early intervention before the age of three years, but, as Senator O'Toole said, school is not necessarily the best place for that.

I have already obtained the agreement and resources to do many of these things administratively. However, I want to go beyond that and give people a statutory right, a right which is enforceable. That is what is in this Bill and it is very important that we get these rights onto the Statute Book. I have been anxious to do this as I know, as Senators mentioned, that time is run ning out. As I explained earlier, there has been some difficulty in getting to this point but we are here and I would like to copperfasten the changes which have been made. Any future Dáil or Seanad may refine these provisions further, but very important basic rights are enshrined here.

We have already obtained an agreement where children with autism and other disabilities will be taken into the school system from the age of three. The legal age for starting school is six but almost everybody starts from age four. A child cannot start school before the age of four. There are many questions to be dealt with in terms of the pre-school side of things. However, children with special needs can now start at age three. That is being introduced administratively – it can only be set up where an agreement to that effect has taken place. This Bill, however, will enshrine this as a legal entitlement from the age of three.

In section 15 there is provision for a statutory right to early intervention. This has been misunderstood by the public, largely because the Bill mentions specifically the formal education system from ages three to 18. In section 16 there is also provision for adults beyond age 18 and that, again, has been slightly misunderstood. My officials have already begun the further consultation process on the provisions in the Bill, based on long consultation and discussions and the findings of task forces and review bodies. Senator O'Toole mentioned that he is happy with the consultation that took place and recognises that the Bill is useful.

I accepted some of Senator Burke's amendments on Committee Stage, so they are already in the Bill. I agree entirely with Senator Quinn that we have to consider the customer, particularly in this area where the customer is the child with special needs. The national council which is provided for in the Bill on a statutory basis will have the duty of looking after that customer. We are setting this up administratively. I have staffing and other approval and the advertisements should come out within the next couple of weeks. Senator O'Toole mentioned the difficulties and impracticalities involved in providing pre-school education for children with special needs below the age of three. Now they are legally entitled to this at the age of three, which I think is very good from the point of view of introducing them to mainstream education. I have only mentioned these points because they were raised by Senators.

Amendment agreed to.
Government amendment No. 2:
In page 6, line 7, to delete "section 5(5)” and substitute “section 7(6)”.

This amendment corrects a simple error – section 5(5) becomes section 7(6)

Amendment agreed to.
Government amendment No. 3:
In page 6, line 23, to delete "other persons" and substitute "such of the persons referred to insection 9(3)”.

This amendment arises from a suggestion made by Senator O'Toole on Committee Stage. Under the provisions for this Bill, the principal of a school will have a statutory obligation to prepare an education plan for the appropriate education of a child where an assessment has been carried out. To fulfil this duty, he or she will need access to the advice of a multi-disciplinary team in the same way as the special needs organiser under the Bill where an education plan is prepared at the direction of the council. The purpose of this amendment is to make this clear. I thank Senator O'Toole for his suggestion on the matter.

Amendment agreed to.
Government amendment No. 4:
In page 7, line 42, to delete "by" and substitute "with the assistance of".

At present, section 7(1) refers to an assessment of a child being carried out by people with appropriate expertise. The purpose of this amendment is to clarify that the assessment will be carried out by the National Council for Special Education but will be done with the assistance of such professionals.

Does that mean the assessment will be more independent? Concern was expressed that assessments were not independent.

Yes, the assessment will be more independent. There is also an appeals mechanism which gives an overriding independence to the system.

Amendment agreed to.
Government amendment No. 5:
In page 10, to delete lines 35 to 40 and substitute the following:
"(4) In preparing an education plan undersection (3) the principal of the school concerned shall, unless he or she decides, with the consent of the Council, that there are good and substantial reasons for not doing so, comply with guidelines for the time being in force under subsection (3).
(5) The principal of a school may appeal to the Appeals Board against a refusal by the Council to consent to a non-compliance undersubsection (4) and, on the hearing of such an appeal, the Appeals Board may–
(a) allow the appeal and give a direction to the Council requiring it to consent to the non-compliance, or
(b) dismiss the appeal,
and the Council shall comply with a direction given to it under this subsection.".

Concern was expressed on Committee Stage about section 10(4) of the Bill. As currently drafted, the principal, in preparing an education plan, cannot depart from the guidelines for preparing these plans unless he decides there are good and sufficient reasons for doing so. This decision can only be made with the consent of the special education needs organiser. There was concern this provision created a situation at school level where the professional judgment of a principal could be second guessed by another person. I appreciate the difficulties this could potentially cause.

I propose to provide that the principal will require the consent of the council rather than the special education needs organiser for a departure from guidelines. To support more fully the principal's autonomy in this area, a new subsection (5) confers a right on him or her to appeal a refusal by the council to consent to a departure from the guidelines. The appeal will be made to the appeals board.

I welcome this because previously people were tied to a school and town and it would have caused grave difficulties if the Minister had not made the amendment.

Amendment agreed to.
Government amendment No. 6:
In page 10, between lines 44 and 45, to insert the following:
"(8) The principal of the school concerned shall implement an education plan and, for the purpose of preparing and implementing that plan, that school shall be provided with the necessary moneys and support services in accordance withsections 13 and 36.
(9) Where the transfer from one school to another school of a child in respect of whom an education plan has been prepared is proposed, the principal of the first-mentioned school shall consult, before such transfer takes place, with the principal of the second-mentioned school for the purpose of–
(a)ensuring that the principal of the second-mentioned school is informed of the content of the education plan,
(b)ensuring that the second-mentioned school is capable of implementing that plan, and
(c) where such amendment is considered necessary by the principal of the second-mentioned school having regard to the special educational needs of the child and the operation of that school (which amendment that principal is authorised by this subsection to make), assisting that principal in amending that plan.".

This amendment addresses three key issues regarding the content of education plans. The new subsection (7) to be inserted makes it clear that there is a statutory duty on the school to implement an education plan. This will encompass not merely the provision of education to children already enrolled in the school, but also the admission of children with special education needs to the school where that is determined by an education plan.

This new subsection creates an entitlement on the part of schools to be provided with the necessary resources to implement the plan. This provision underpins my obligation as Minister under section 13 of the Bill to make financial resources available for the provision of appropriate education to children with special education needs.

It will also serve to reinforce the duty on health boards under section 36. The role of the boards in respect of special education in schools arises in the context of providing access to therapies and health related services. It would be neither desirable nor efficient to create the situation where the education system sought to replicate the services now provided by the boards. One of the key objectives of the Bill is to bring clarity to the important support role which the boards have to play in the education of children and adults with special education needs.

The new subsection (8) provides for a situation where an education plan has been prepared for a child and he or she is to change schools. The provision guarantees a system of consultation between the schools regarding the plan to ensure the new school is aware of the child's needs, has the capability to deliver the plan and that there is an opportunity to amend the plan where this is necessary having regard to the child's special educational needs and the new school's operation.

These additions to the Bill's provisions will substantially strengthen the value, utility and effectiveness of education plans. Senators asked for this on Committee Stage and I told them it would be done on Report Stage.

I welcome the inclusion of this section because it puts the role of the school and the principal in the forefront and gives him or her reinforcement as the main person to consult initially.

Amendment agreed to.
Government amendment No. 7:
In page 12, line 32, after "needs" to insert "as determined in accordance with this Act".

Section 13 imposes an obligation on me as Minister to provide to schools whatever resources are necessary to ensure adequate and appropriate education provision for children with special education needs. This amendment empha sises this duty by specifically providing that it is the Minister's duty, in accordance with the rights conferred on children, and the duties imposed on the Minister in the Bill.

Amendment agreed to.

Amendment No. 9 is related to amendment No. 8 and amendment No. 10 is cognate so they can be taken together by agreement.

Government amendment No. 8:
In page 13, line 23, after "child" where it firstly occurs, to insert "and after consultation with the principal of the school which the child is attending".

These amendments arise from amendments proposed on Committee Stage by Senator O'Toole. They ensure that in providing for the education of adults with disabilities, the council will consult with the principal of the school he or she attended as a child. This is a vital link given the crucial role the principal will play in the operation of the Bill when enacted. I thank Senators O'Toole and Burke for their suggestions in the matter.

Amendment agreed to.
Government amendment No. 9:
In page 13, line 26, to delete "the school which he or she is attending" and substitute "that school".
Amendment agreed to.
Government amendment No. 10:
In page 13, line 33, after "child" where it firstly occurs, to insert "and after consultation with the principal of the school which the child is attending".
Amendment agreed to.
Government amendment No. 11:
In page 16, line 14, to delete "13” and substitute “16”.

This is a technical amendment to correct a drafting error.

Amendment agreed to.

Acting Chairman

Amendments Nos. 12 and 13 are related and can be taken together.

Government amendment No. 12:
In page 17, line 1, to delete "10” and substitute “12”.

Concerns were expressed on Committee Stage about representation of the edu cation partners on the national council. A number of Senators spoke on this point. I listened carefully to what was said and reflected on contributions following the debate. Senators will be aware from my earlier statements that my objective for composition of the council is to ensure a small, focused group who have a grounding in special education issues. The risk of naming particular groups or bodies in the legislation is that it will generate demands for inclusion from a very wide spectrum of interests, many of which would have an equally arguable case for inclusion. Therefore, the approach I have adopted is to recognise the legitimate interest which the education partners have in this matter by providing for up to four nominees from the interests mentioned. At the same time, I propose to increase the number on the council to 13.

The amendment is definitely an improvement. While the Minister is quite right to emphasise that one must try to keep the number of people on the council manageable, the new figure is not unmanageable. I am disappointed, however, that another matter which I raised during my Second Stage contribution has not been addressed, namely, the absence of a place on the council for persons with a disability. While I accept such persons are not specifically excluded, I had hoped the amendment would refer to them because many people with a disability would be the most useful people to have on such a council. Given that disabilities cover a wide spectrum, we must be careful not to confine ourselves to intellectual disability. When the Minister nominates the members of the council, I hope he will try to include as many people with a disability as possible because those disabled people who have experience of trying to receive an education are extraordinarily important.

It is also very important to note that one is not necessarily born with a disability, that it can be acquired. Therefore, two groups need to be considered in this context, namely, those born with a disability and those who have acquired a disability and are in a position to describe what life was like before and after this often very chastening experience. Anyone who has experienced disability during his or her life will be aware of the degree to which life becomes more difficult if one cannot continue as before. I hope people with acquired disabilities are given priority when the Minister establishes the council.

I spoke on this point on Second Stage. It is very important that the composition of the council reflects the needs of disabled people. While this matter has been vaguely incorporated in the amendment, I ask the Minister to spell it out further. I completely agree with the Senator's point that we should ensure there is a broad reflection of interests on the council.

I agree entirely and accept Senator Henry's point that the people who acquire a very serious injury or special need later in life through accident or otherwise are very often involved and vocal – although I realise this is not always possible – in trying to improve the position of people like themselves. Section 20(2) emphasises that "The chairperson and ordinary members of the Council shall be appointed by the Minister from among persons who have a special interest in or knowledge relating to the education of children with disabilities." Nobody has a greater interest than people with disabilities.

Amendment agreed to.

Acting Chairman

Before amendment No. 13 is moved, there is a printing error in paragraph (b) of the amendment. The final paragraph should read “trade unions and staff associations”.

Government amendment No. 13:
In page 17, between lines 6 and 7, to insert the following:
"(3) Before making appointments to the Council under this section, the Minister shall consult with–
(a) national associations of parents,
(b)recognised trade unions and staff associations representing teachers and principals of schools, and
(c) recognised school management organisations
with a view, where the Minister considers it appropriate to so do, to appointing as members of the Council persons nominated for such appointment by those associations, trade unions and organisations, but the number of nominees of those associations, trade unions and organisations (taken as a whole) that may be so appointed shall not exceed 4.".
Amendment agreed to.

Acting Chairman

Before amendment No. 14 is moved, there is a printing error in the amendment. The last line should read "children with special educational needs."

Government amendment No. 14:
In page 18, between lines 37 and 38, to insert the following:
"(2) A special educational needs organiser shall have such qualifications, expertise and experience relevant to the education of children with special educational needs as the Council considers appropriate.".

This section does not at present specify what qualifications a special needs organiser must have. It is and always has been my intention that special needs organisers would have to be qualified and have expertise in the area of special needs. I now propose to provide specifically for this.

This is an extremely good idea coming at a time when people are setting themselves up with the most incredible titles. I sometimes ask myself what a counsellor is given that anyone can call himself or herself a counsellor. It is extremely wise to introduce this amendment to address a matter raised by Senator O'Toole.

Sometimes I think Deputies and, to a lesser extent or with less frequency, Senators are counsellors.

There are counsellors and councillors.

Amendment agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."

I thank the Minister and the Government for moving this legislation forward. While there was considerable ill feeling on the initial stages, I am delighted the Minister has introduced amendments at the request of the Opposition and considered the Bill in a broad context. The Minister has recognised that outstanding issues remain. Nevertheless, it provides a statutory framework to reflect the needs and rights of people with disabilities to an education and introduces an education plan to facilitate this right. While it can be improved, the Bill will ensure that from now on there will be close co-operation with disability groups.

Nobody would disagree with the purposes of the Bill nor would anybody question the motivation or integrity of the Minister or his desire to see this legislation on the Statute Book. However, I remain very critical of the way in which the Bill was introduced. I compliment the Minister on the way in which he listened to the Committee Stage debate in this House and the manner in which he has responded through these amendments. As I stated at the outset, the process of consultation is only half complete. I hope the Minister will follow the Taoiseach's advice by talking and listening to the various groups, many of them representing practitioners, which have expressed dissatisfaction with the Bill in very strong terms. Once this has been done and the Bill goes before the other House, I suspect it will be substantially amended. I do not know who will be in the Houses after the election, but I suspect that whoever the Minister is, he will probably experience a very full debate on the amended Bill. That said, there is no disagreement on the objectives the Minister seeks to achieve.

Like Senator Manning, I have heard a large number of people from the various organisations express dissatisfaction with the Bill because they wanted more consultation. I am sure the Minister's heart is in the right place on this and I hope that before it proceeds to the other House, he takes time to talk not only to the groups representing adults and children with disabilities, but also the service providers because they will be able to provide him with a great deal of information based on their expertise. I hope the Bill will return to this House having been amended in the other House.

I thank Senators for their contributions today and for the excellent debate the other night to which I have responded. It is important, as Senator Ormonde said, to try to complete the statutory framework. I have the chance to do that now and I would like to do so. I know there are those who want a constitutional framework and there is nothing to stop them pursuing that in a democracy. However, it is a long road and many issues will arise, such as the balance of rights, etc. I am making much progress on the administrative side and I hope to make more soon. This is a good, solid statutory framework. I will continue to do what we have started and to have further consultation about what is included in it. My officials are involved in that process. I thank my officials, led by Tom Boland who is with me today, for the work they have put into it. It genuinely supports people with special needs. If we put it on the Statute Book, it will make a huge difference in the future.

Senator Manning said he does not know who will be in Government after the election. That is the nature of democracy. However, it is all the more reason to try to put it on the Statute Book. We have a good idea of what is involved and we have set up task forces and review committees. I am sorry it was not possible to bring the Bill before the House earlier. I thank Senators for their co-operation and excellent contributions. I also thank the staff of the House for dealing with it in an urgent manner.

Question put and agreed to.
Sitting suspended at 11.55 a.m. and resumed at 12.30 p.m.
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