Amendments Nos. 1 and 2 in the names of Senator Tuffy and Senator Ulick Burke are out of order.
Education for Persons with Special Educational Needs Bill 2003: Committee Stage.
SECTION 1.
Amendments Nos. 1 and 2 not moved.
Question proposed: "That section 1 stand part of the Bill."
The Minister of State and his officials will be aware that on Second Stage I spoke at length on the issue of the definition of a child being a person of not more than 18 years of age and the difficulty of children who, because of their special needs and disability, start school at a later age than other school going children. They sometimes start school at six and seven years of age instead of at the age of four or five. There is an issue about them reaching the age of 18 years before having completed their education. Often when children with a disability are in school, they also have additional health problems which means they need to spend longer at school. As I said on Second Stage, the onus is on the Government because the Opposition cannot insert an amendment, given that it would mean a charge on the State. It is up to the Government to deal with this issue.
I have been informed by the Minister, Deputy Noel Dempsey, that the Supreme Court has defined the age of a child to be up to 18 years. This is a fine Bill, a great Bill which is long awaited. I have no wish to disrupt its passage through the House but I cannot stand by and allow legislation to go through which I believe is fundamentally flawed. If children with special needs are being given rights up to the age of 18 years, then they should be given the right in this Bill and not in any other legislation, such as a disability Bill, to continue their second level education past the age of 18 years. It is not appropriate to define education in terms of years, given that these children have special needs.
I appeal to the Minister of State and his officials to consider this again before Report Stage and to consider the possibility of amending the legislation somehow or other, whether in the definition or with the insertion of a new section, changing the word "student" or extending the age beyond 18 years. I understand there are legal issues to be addressed. I wish to put on record that the Bill as it stands is fundamentally flawed in that it does not address the special needs of children. If it is passed as it stands, we will have done a disservice to children who have special needs. While I will not vote against the section, if the Government is not in a position to deal with the issue on Report Stage, which I believe is scheduled for Thursday this week, I will find it very difficult to allow the legislation pass without making that point and doing something which I would very much regret having to do. I am pleading with the Minister of State that between now and Report Stage, he considers making it very clear in this House how the Government will deal with the situation.
I have specific questions which require specific answers. A child with special needs may start school at six and a half or seven years of age because he or she is not ready for junior infants until that age. During their schooling, the child may miss school for a year or two due to illness, such as a congenital heart disease. By the time the child reaches second year in secondary school, they may already be 17 years of age. The Minister of State's officials will say it can be seen whether the goals in the education plan have been achieved. We are then pushing the responsibility away from the Department of Education and Science to the Department of Health and Children. We are saying to the parents of the child that they must now refer to different legislation, the disability Bill or whatever, which the House has not seen yet, and have the child's rights provided for by the Department of Health and Children.
The difficulty is that when tighter economic circumstances arise and a Minister for Finance tells Ministers they must all keep their budgets within allocations, the Minister for Health and Children will not provide for the education of a person aged 19, 20 or 21 years with special needs if he or she does not have a legal right to education.
There is no reason we cannot provide statutory rights greater than constitutional rights. The Constitution of which we are so proud is a statement of rights on which we can build. I appeal to the Minister of State to examine the Bill before Report Stage to find a way to address this issue and allow the Houses to pass it in a form that is right and proper for all children.
Having raised this issue on Second Stage, I wholeheartedly agree with Senator Cox. The Bill effectively excludes anyone aged over 18 years from benefiting from its provisions. It would be an advantage if we could identify legislation which would benefit such persons but we do not have a disability Bill and are not aware of its contents. Reports indicate, however, that the Minister responsible, who is not the Minister for Education and Science, is hesitant to introduce a rights based Bill. The Education for Persons with Special Educational Needs Bill is long overdue but very good legislation. As Senator Cox and other Senators have pointed out, the glaring difficulty with it is its failure to provide for education for persons with disabilities beyond the age of 18 years.
Most children will start primary school at four or five years of age. Given that a child with learning difficulties may not be identified as having special needs at such an early stage, he or she will experience a delay in starting education. The law of averages indicates that he or she will experience additional delays while at primary school. One need only consider the delays many students have experienced in recent years while trying to have an assessment carried out. Many cannot get assessments and, as Senators will be aware, such children can expect repeated delays and excuses if they rely on health boards, an issue we will discuss later.
In second level, students will experience further delays for various reasons. It is conceivable, therefore, that persons with learning difficulties will not reach the end of their education by the age of 18 years. For this reason, it is vital that the Minister re-examine this matter and use all means necessary, which are best known to him and his officials, to allow persons with special needs to continue with their education after the age of 18 years.
While I cannot speak to my amendment——
The Senator may do so.
Children with special needs should be catered for while in full-time education regardless of age.
I also raised this point on Second Stage. In making an assessment of a child which will form the basis of an education plan, we must bear in mind that a person aged 18 years may have a mental and reading age of six years. I am concerned there will be no continuity. Will a child who reaches 18 years of age in the middle of an educational programme be unable to continue the programme after the end of the school year? In other words, will the programme stop when the child turns 18 years? Will the Minister of State guarantee that the forthcoming disability Bill will provide for continuity to ensure that a child is able to complete any programme devised for him or her beyond the age of 18 years? Will he assure me that parents will be made aware that continuity is guaranteed irrespective of the location to which the child is transferred?
I do not mind if the plan does not involve education provided the needs of the child will continue to be met after the age of 18 years. If the Minister assured the House that the forthcoming disability Bill would provide for this continuity, I would have no difficulty with the legislation. I am concerned that a child's education plan would be discontinued in the June following his or her 18th birthday, thus forcing the parents to start all over again with a new assessment and different expertise, and to place their child in a different programme. Will the Minister of State comment on this point?
Other Senators have largely covered the matters I wished to raise. I ask the Minister and the Department to reconsider this issue. The idea that the right to education no longer applies once a person turns 18 years does not fit in with reality on the ground. Most students will complete second level education at the age of 19 years as a result of transition year and the policy of many primary schools of accepting children from the age of five years, a trend which is likely to continue.
People have a right to free third level education provided they obtain a place. We are trying to promote the idea of lifelong learning. The constitutional right to education until the age of 18 years is outdated in practice. For this reason alone, but also for the reasons outlined by other Senators, including the different circumstances of persons with special needs or disabilities and the need to ensure they are properly provided for in terms of educational provision, we need to move the goalposts on this issue.
Amendments Nos. 1 and 2 and other amendments have been ruled out of order because they impose a charge on the Revenue. Given that the legislation also imposes a charge on the Revenue by providing rights for children aged under 18 years, I do not understand the reason our amendments were disallowed.
I am sympathetic towards the concerns articulated on both sides. Nobody wants a lacuna to result from, or even be defined in, the Bill for post-18 year olds. Those of us who have been in the educational field or are parents will have children or know friends of their children who availed of or should have been able to avail of special educational facilities.
I am not sure how amending the terms of the Bill would meet the needs and concerns of previous speakers in a way that it does not already. Perhaps the Minister of State or Senators will enlighten me in that regard. I was aware before Second Stage that the term "child" was defined in section 1 as a person not more than 18 years of age but also that section 15 dealt extensively with the need to have a transitional plan, namely a plan that would straddle both the end of second level education and the move into continuing education. I was also aware of the manner in which the Bill sets down the terms by which the principal of the school, the special educational needs organiser or the National Council for Special Education would address this important issue, which must be confronted by the Minister of Education and Science, his Department, the Government and Members of both Houses. It is difficult to see what more could be included in the Bill, beyond the provisions of section 15, to anticipate and account for these difficulties and what extra provisions, assertions or aspirations can be included to adequately address the concerns shared by all in this House and by the Minister of State. We would like to see the Bill meet these needs in a definitive way.
I understood before I spoke on Second Stage that there was a Supreme Court decision regarding the 18 years of age issue. That does not have to be sacrosanct in perpetuity. I also understood that the proposed disability Bill is deemed by the Government to be the more appropriate vehicle to deal with this issue. I may be wrong in this, as may the Government, but that was my clear understanding before Second Stage. I also understand that an advocacy mechanism will be launched next Thursday by the Minister for Social and Family Affairs, Deputy Coughlan, as a consequence of a detailed study on the issue of advocacy for people with disabilities. What can be included in this Bill to meet our concerns and tackle the lacuna we all agree exists and which section 15 attempts to address?
The amendments to section 1 have been ruled out of order but the substance of Senator Cox's contribution reflects their intention. The Minister for Education and Science, Deputy Noel Dempsey, has been penalised in this discussion for being first out of the traps. He has produced the legislation he promised and he was very open to accepting amendments. The limit for such amendments is now unfortunately approaching because the Minister has to consider the interdepartmental allocation of responsibilities in this matter. The Supreme Court's judgment in the Sinnott case was very clear-cut on the matter of the right of children to receive free primary education and that this right ceased at 18 years of age. The Bill does contain some rights-based elements for those over 18 but that judgment puts a definite colour on how the Minister must relate to his colleague regarding the provision of services in this area.
That is not to say that a person with special educational needs will miss out upon reaching the age of 18. Section 15 expressly provides that regard must be had in the planning and reviewing of education plans to the provision that must be made to allow the child to continue his or her education beyond that age. It also provides that where a child will reach 18 in the following year, the council established under the legislation must assess the extent to which goals in previous plans met the child's special needs, the reasons for any failure in this respect and the effect this had on the child. The educational plan for that year must address any such effects. These measures can continue after the age of 18 and this will aid the continuation of services when the child becomes an adult and begins to enjoy rights under the proposed disability Bill.
The forthcoming disability legislation will deal more specifically with the delivery of services including educational services to adults with disabilities. It will ensure that persons aged over 18 with educational disabilities have access to a further assessment of their needs, where relevant, and an individual service statement. The Minister has included a continuity provision in the Education for Persons with Special Educational Needs Bill 2003 but subsequent to the Sinnott case he must have some basic agreement with the other Departments on the allocation of responsibilities. The Minister has not defaulted at all in that he has brought this legislation through the Dáil and is now presenting it for the consideration of this House. His Department has worked closely with officials in the Department of Justice, Equality and Law Reform to ensure consistency and a complimentary approach between this Bill and the disability Bill that will emerge from that Department.
There is no disagreement in principle between the Minister and what Senators have said. The difference is simply one of approach in deciding how best to address the needs of those with disabilities. The purpose of this Bill is to provide a statutory framework within which the special educational needs of children with disabilities can be guaranteed as a right enforceable by law. Together with the introduction of an advocacy service for both children and adults under the Comhairle (Amendment) Bill sponsored by the Minister for Social and Family Affairs, this Bill and the disability Bill will offer a complete and seamless service, albeit with different regimes, for both children and adults.
In terms of providing that seamless service, the Minister through section 15 has ensured that there is at least joined up thinking coming from the Department of Education and Science regarding the establishment of that basic scaffolding of rights for all persons with special educational needs. The Minister is sympathetic to the points made by Senators and he discussed this issue with me before the commencement of Committee Stage in this House. Section 15 of this Bill and the forthcoming disability Bill address the needs of those with special educational needs. A careful examination of section 15 shows that this Bill does not exclude those over 18 years of age from its provisions. The Bill represents a rights-based approach at least in continuity and the provision of services consequent upon that continuity. That is as far as the Minister can go on that matter. The amendments have been ruled out of order because the scheme and purpose of the legislation is clear regarding the definition of the child contained in the interpretation section.
I mentioned on Second Stage that we have already involved the Department of Finance in education and the situation is now further complicated by the involvement of the Department of Justice, Equality and Law Reform. One does not have to turn the clock back far to realise how ineffective the Department of Justice, Equality and Law Reform has been in exercising those aspects of child education committed to its control. There was no place to detain those children in the first instance. We now find ourselves in a position where the Department of Justice, Equality and Law Reform will be drawn into the system of continuing education for people with special educational needs. I regret that the Minister of State cannot offer us anything better by way of guarantee of continuity within the Department of Education and Science. The Minister for Education and Science should have control of education for the child. The Minister of State said the school principal will be aware that there must be continuity in a child's education and he reassured the House that the principal will endorse the education plan so that there will be continuity and no disruption will be caused to the parents or the child. I am happy with the section.
I am happy with the Minister of State's comments but my difficulty remains. By defining a child as someone under the age of 18, there will be a problem. Section 15 provides for a review of the education plans of children within 12 months of them reaching 18 years. They may attend school and have an education plan reviewed and evaluated that year but, in some cases, a child may not attend school during that important year because he or she is out sick for six or nine months. The school will no longer have the necessary supports in place that he or she needs. The child's parents will contact the principal the following September to say their son or daughter is ready to start again but the principal will say he must contact the Department of Health and Children to have an assessment carried out, ascertain whether the education plan is still all right and pursue resources because of the break in the child's school attendance.
If the legislation provided that resources should be provided to such children until they were aged 21, the principal would not have to worry. He would not have to contact health boards and so on and he could deal with the issue himself. This provision should be enshrined in this excellent rights-based legislation. The Minister of State is correct that the Minister for Education and Science is ahead of his time and he should be commended on the legislation. If there is no difference regarding defining the age of a child in terms of continuity, then in the context of constricted finances in the future and other challenges that may have to be faced, the provision of resources should be copperfastened and enshrined in the legislation.
I accept the Minister of State may not have the answer but it is our responsibility to enshrine that right in this legislation. I hope he will convey my comments to the Minister for Education and Science and that he may be able to do something before Report Stage.
Senator Ulick Burke referred to the position of the Department of Justice, Equality and Law Reform. Under the Children Act 1908, boys under 16 and girls under 17 are committed to the Department of Education and Science when they are convicted of offences and, therefore, the only children for whom the Department of Justice, Equality and Law Reform has responsibility are male offenders aged 16 or 17 and females offenders aged 17. The number of female offenders is small.
The major difficulty in the implementation of the Children Act has been the issue of whether the Department of Justice, Equality and Law Reform should provide a dedicated facility for 16 and 17 year old females. The scheme envisaged under the Act was that all offenders under 16 years would be the responsibility of the Department of Education and Science and 16 and 17 year olds would be the responsibility of the Department of Justice, Equality and Law Reform.
The vast majority of juvenile offenders are detained by the Prison Service at St. Patrick's Institution on behalf of the Department. A number of them are held in other institutions for geographical reasons. I have arranged for a substantial teaching allocation for the new wing of St. Patrick's Institution which has yet to open. I appreciate the Senator's concern about this issue. There was always good educational provision in the industrial and reformatory schools. They will become child detention schools under the Children Act and the Department of Education and Science has always taken its responsibility seriously in this regard. Teachers in these institutions are part of the national school system, although the children are a little older than the national school age.
The education of male offenders aged 16 and 17 is the responsibility of the vocational education committee where the penal institution is located. I am glad there have been improvements in this area. I appreciate the Senator's concern that their needs are not always at the top of the education queue. The Department of Justice, Equality and Law Reform has begun to address its responsibilities in this area in recent years.
Senator Cox asked me to communicate the issue she raised to the Minister and I will do so. However, with regard to children who do not attend school in their final year, their right to an assessment is provided for in the legislation. That child is not in the care of a principal at a particular school but the right is enshrined in the legislation. Under section 15, the child has the right to a plan for his or her future educational needs. That right is not dependent on the existence of a principal or attendance at a school.
However, Senator Cox referred to the case of a child who does not undergo an assessment that year. That must be dealt with under the disability legislation because the person will be aged over 18 by the time the right to an assessment arises. The disability Bill will determine that issue in terms of an independent right to an assessment by the health authorities. This relates to the interdepartmental division of responsibilities. I assure the Senator the issue will be addressed in the disability legislation and that is as far as I can go. Where the child has passed the age of 18, the independent right of assessment will be in the hands of the health authorities.
The Minister for Education and Science and his officials have thought through the rights that need to be provided in the education system. I accept if joined up thinking is to succeed in this area, other Departments must co-operate through a clear statutory framework with the Department of Education and Science. The difficulty with the disability Bill is achieving interdepartmental co-operation and joined up thinking between the Departments. I am Minister of State at three Departments and while, happily, I do not have charge of financial decisions, I can see at one remove the need for greater joined up thinking between these Departments. The Department of Education and Science has gone a long way in this legislation. It is ahead of the pack and it has also provided for continuity. It is up to the other Departments to bring forward legislation that will lock in with this measure.
If children are not disadvantaged by defining a "child" as someone aged under 18 years of age and they will be taken care of one way or the other, why not make the change?
Hear, hear.
Why not provide a statutory right that is greater than the constitutional right? I acknowledge what the Minister is trying to achieve in the legislation but what is precluding him from making a change? I do not expect a reply this evening but that is the key question. If the child is still protected under legislation, there is no reason to fail to make the change and introduce a Government amendment.
Question put and agreed to.
NEW SECTION.
I move amendment No. 3:
In page 7, before section 2, to insert the following new section:
2.—It is hereby declared that, in enacting this Act, the Oireachtas has had regard to the following principles:—
(a) legislation in the area of education of persons with disabilities must be based on international human rights standards;
(b) the overall objective of such legislation must be equal access to effective and adequate levels of education;
(c) education should be provided within the mainstream education service or in the least restrictive alternative;
(d) education services should be based on an individualised assessment of need;
(e) parental involvement and where possible, involvement of the person with disabilities should be a central element of the process;
(f) delivery of services should be based on the principle of progressive achievement;
(g) a rights-based system of enforceable remedies is an essential component of any system of redress”.
The purpose of the amendment is to state a number of general principles we consider should apply to the legislation. The statement of principles is taken from the submission by the Irish Human Rights Commission, although it is slightly changed. The commission referred to judicial remedies in its final paragraph, while we suggest a more general formula relating to rights-based, enforceable remedies. It would be helpful to have these kinds of general principles in the legislation and it deals with a number of issues which came up on Committee Stage in the Dáil, such as requiring that education services be based on individualised assessment of needs, parental involvement and so on.
The amendment reminds me somewhat of Article 45 of the Constitution and the directive principles of social policy. Those are laudable aspirations which no one would disagree with, but in terms of hard statutory draftsmanship, everything in the Senator's proposal is already contained in different parts of the Bill.
For example, there is an aspiration in the amendment that the Bill be rights-based, but all the matters addressed in the amendment are inherent in the Bill. The amendment appears to take the place of the Long Title, which would be a more appropriate place to deal with the general objectives of the legislation. The Bill already refers to the desirability of conforming with best international practice. The Minister for Education and Science will be under a duty to conform with and promote best practice and he or she will be advised on that by the National Council for Special Education. Those roles would be confused by the amendment, which could be unenforceable. Again, the aspiration to equality is stated in section 13, where it has far greater effect. The Bill already requires the Ministers for Education and Science, Health and Children and Finance to make resources available for the implementation of the Bill's provisions. Senator Burke may have a separate argument on that section — he has already outlined his views on that provision and he may revisit this issue. We must be conscious of the need to ensure that children with special educational needs have the same right to avail of education as their peers without special needs. That clear statement is already made in the Bill and meets the aim of paragraph (b), as set out by Senator Tuffy.
Paragraph (c) refers to inclusive education and again, under the existing term, section 2 is a very practical and enforceable statement of the child’s rights under the Bill. The proposed amendment could not add to that and similar considerations apply to paragraphs (d), (e), (f) and (g). While I do not want to dissent from the sentiments contained in section 2, objectives of that type — “sentiment” may be somewhat patronising — should be contained in the Long Title or set out with greater specificity in the individual provisions of the Bill.
I am not sure I agree with the Minister of State. What the amendment seeks would be akin to putting a charter in the legislation. The Minister of State said that certain things are inherent in the Bill but this spells them out more specifically. Paragraph (e) mentions the involvement of the person with the disability as an element of the process. The rights-based system is also specified here, which helps underpin the legislation itself and give some kind of charter. It is not the same as the Long Title; it is just a suggestion from the Labour Party.
It is not normal practice in our tradition of statutory draftsmanship to have declarations of principles as ordinary sections in legislation. The declaration of principle or objective is contained in the Long Title and I do not want to recite that again, but it is very clear that the objectives set out in the Long Title conform, by and large, with the amendment. Please God it will not fall to this Bill to be construed by the courts too often, but if it does then clearly the courts will construe it in the light of that Long Title. It is not our normal practice to insert a separate section outlining general principles. That section would not have any particular weight as against the other sections, many of which already contain the statements of objectives or particular principles which the Senator has sketched out in the section.
Amendment, by leave, withdrawn.
SECTION 2.
I move amendment No. 4:
In page 7, paragraph (b), line 20, after “for” to insert “the child concerned and the”.
The purpose of the amendment is to broaden section 2(b). As currently worded, the section requires attention to be given to the needs of the other children and not the particular child with disabilities. Our amendment seeks to correct that imbalance.
Again, I do not see how this would add in any way to the Bill. It seems to restate the contents of a previous paragraph and does not seem to add any greater clarity to the legislation.
Amendment, by leave, withdrawn.
Section 2 agreed to.
NEW SECTION.
I move amendment No. 5:
In page 7, before section 3, to insert the following new section:
3.—Where both the Department of Education and Science and the Department of Health and Children have joint roles under a provision of this Act, they shall establish a central body with responsibility for the co-ordination of education and health services in these areas.".
The Minister of State has dealt with this issue already. He mentioned greater joined-up thinking regarding his responsibilities in justice, health and education. On the other hand he also mentioned a division of responsibilities. This is important and all of us know of the delays which have occurred over the years with the Department of Education and Science depending on the Department of Health and Children and the health boards, for assessments and for any services for which they were responsible or which were requested by either inspectors or departmental officials.
The substance of this amendment would co-ordinate the efforts of the Departments of Education and Science and Health and Children. My preference is for the co-ordination to occur under the auspices of the Department of Education and Science. Some of the bodies which made submissions clearly indicated that that Department would have responsibility for co-ordinating those efforts.
A parent who suddenly realises his or her young child has special needs experiences great trauma. He or she then has to hassle the Department of Health and Children for basic entitlements, never mind rights, which is a daunting experience. Moving on a few years, when the child is at school going age the parents have to take on the Department of Education and Science. I read into the record the delays people have experienced in getting assessments. The average wait is six and a half months, while a quarter of those involved wait nine months. Some must wait as long as five years. That causes great difficulties for young children with special needs who are receiving education. The delay is crucial and is having a serious effect down the line. It also relates to the section we dealt with earlier. Ordinary parents who are confronted with that difficulty will have to deal with two different Departments. For example, a family that had emigrated, returned home two years ago with three children, two of whom required special assistance. They went to the local national school and an assessment was requested but the principal could not obtain one at that time. In November 2003, the children's mother wrote to the relevant section in the Department of Education and Science. To date, however, she has not even received an acknowledgement from the Department, let alone a reply as to what it intends to do. This mother has had to seek an assessment privately. That assessment was sent to the Department subsequently but was never acknowledged. In the absence of a statutory provision by the Department of Education and Science, that parent went about the process but failed to achieve anything.
From now on, we must co-ordinate the efforts of the Departments of Health and Children and Education and Science, under the auspices of the latter Department. The endeavours and expertise of both Departments must be combined. The Minister of State should include the new section in order to eliminate the hardship experienced by many parents, as well as the delays and difficulties faced by their children. Where such difficulties can be eliminated, the Minister of State should act to do so.
The amendment has much to recommend it and I support the principles articulated by Senator Ulick Burke. Over the years, many opportunities were lost due to a lack of co-ordination between the Department of Health and Children, the Department of Education and Science, and the Department of Justice, Equality and Law Reform. The appointment of the Minister of State, whose responsibility spans all three Departments, is a clear vindication of the need for such interdepartmental co-operation. I commend him for his work and commitment to all three Departments. There is nothing about Senator Burke's comments with which I could disagree in principle.
On an interim basis, sections 39 and 40 appear to address adequately the issues the Senator referred to concerning the establishment of a central body. It might be somewhat pre-emptive to establish a central body by virtue of this Bill, given that the disability Bill will follow subsequently. The Minister of State has stated categorically that the disability Bill will deal with all the issues running in parallel with this Bill. He has also made it clear that the education aspect is to be continued right through into adulthood. I am extremely supportive of what Senator Burke has had to say, but I am worried about the timing of the amendment and the appropriateness of deciding now whether it should be taken in the context of this Bill.
I support the amendment. I have experience of dealing with this issue that was raised with me by parents of children with special needs in a local school catering for children with autism. When I raised the issue with the Department of Education and Science, however, I was told it concerned the Department of Health and Children, and vice versa. The lines were crossed in that case but the proposed central body would help to prevent these situations from arising. If such an issue had to be dealt with, one could approach a centralised body that would provide an answer.
I agree with all the sentiments expressed. Over the years, various agencies have been created but they have not always improved efficiency. The issue is whether the Departments of Education and Science and Health and Children do their jobs properly. The Minister has introduced some good reforms and has made transparent the systems within the Department of Education and Science catering for various requirements. However, we have ongoing problems. For example, we are still unable to find out from the Department whether appropriate facilities will be in place in a Galway school this autumn to cater for four children with special needs. This happens all the time.
I do not agree with the method Senator Ulick Burke has suggested concerning the establishment of another centralised body with responsibility for co-ordination. The Bill sets required time limits for certain actions to be undertaken, so if the legislation is implemented appropriately in the Department we should be able to deliver the services to which Senator Burke referred. There is a great need for co-ordination, especially from the moment a diagnosis is made — whether that is in hospital when a disabled child is born or later on when autism or ADHD is identified. It then becomes clear that the child has special needs and parents must contemplate a range of issues they never considered before. We need to make that journey easier, both for parents and schools.
Given the responsibilities the Bill will place on school principals, we should give them the necessary support structures to carry out normal school business in addition to taking on those additional duties. It is a challenge for the Department to provide resources for special needs assistants and resource teachers, as well as helping teachers and principals to deal with their additional responsibilities arising from the legislation.
Senators will be glad to hear that I will not be promising a disability Bill in aid of any matter that has been raised in respect of this section. I have a far simpler answer for Senator Ulick Burke, which is that in a sense the Bill does create a central body called the National Council for Special Education. In addition, the Bill provides for an appeals board. If the Senator examines the legislation he will note that the provision of appropriate education services to children with special educational needs involves the close co-operation and co-ordination of activities between education and health authorities. The Bill's provisions resolve current difficulties regarding co-ordination. In the case of a school going child, section 7 provides that the council must provide him or her with the services identified in the education plan as being necessary for the child to participate in and benefit from education. If the child is not of school going age, this responsibility rests with the health board. If the council or health board believes that the other body can provide the services more effectively, it must inform the other body of this and that body must then ensure that provision.
If a dispute arises between the council and the health board, it must be resolved by the appeals board. Creating another special body in addition to the two we are already creating in this legislation, far from ensuring greater co-ordination, would lead to greater confusion.
Under section 39, the council will be empowered to request a health board to take specified action where it considers this to be necessary for the preparation or implementation of an adequate education plan, or necessary more generally to assist the council in carrying out its functions. We have conferred a specific power on the council in that regard to coerce the health board if necessary.
Section 16 makes clear that health boards will be required to implement education policy and policy regarding support services formulated by the Minister for Education and Science and the Minister for Health and Children. This addresses the issue of joint responsibility raised by the Senator in his amendment. I do not disagree with the thinking behind the amendment but what it proposes is already met in the provisions of the legislation.
I agree with some of what the Minister of State has said. However, the national council is a distant body, whereas when the local health boards deal with local Department of Education and Science officials an issue can be dealt with quickly using a hands-on approach. The Minister of State referred to the fact that one body must report to another and report back to the council. All of this takes time, which is of the essence. The Minister of State referred to this, as did the Minister for Health and Children in the Lower House. We will lose time through such a process of reporting from one body to another and on to a third, before waiting for a reaction to coerce the health board into doing something.
When we have to use powers such as these, resistance grows which means that the people in need fall between two stools. If the legislation defers such action into the distance it will cause delay, which can prove crucial in some instances. Therefore, it is regrettable that the Minister of State does not propose to accept the amendment.
As I pointed out to the Senator, the central body of the appeals board will resolve differences. The responsibility to address the co-ordination of education and health services has been addressed. I welcome that the Senator's amendment pointed out a need to co-ordinate the education and health services because the much-loved health boards will no longer exist in a very short period of time. Moreover, the problem with co-ordination will still remain and will have to take place between the health services executive and the council established under this legislation. The appeals board is enshrined in the Bill and will ensure that definitive decisions can be made in the best interests of the children whom the Bill seeks to protect.
Amendment, by leave, withdrawn.
SECTION 3.
I move amendment No. 6:
In page 7, subsection (2), line 36, after "concerned" to insert ", unless he or she is of the opinion that measures open to him or her are unlikely to meet the educational needs of the child, in which case the principal shall request the Council to prepare an education plan under section 7 in respect of the child”.
The way in which the Bill is worded at present means that if a principal knows that he or she cannot take measures that would address the educational needs of a student, he or she must implement the provisions set out in subsection (3) even though he or she may not have the ability to take such measures. The amendment seeks to allow for the principal to decide that he or she is not able to take such measures and can require the council to prepare an educational plan under section 7 in respect of the child. This would save time in addressing the needs of the child because the process under subsection (3) might be futile if the principal knows he or she cannot deal with the problem. It allows for an alternative whereby, the principal can require the council to prepare an educational plan.
School-based assessments and education plans under section 3 are aimed at children whose needs are less complex or severe. If it is clear that a child has a disability or has complex needs, for example, a dual impairment, it is open to the parents to seek an assessment from the health board or the council. Therefore, there is no question of restricting the right of access of a parent to the council or a health board. The parent does not and should not have to wait while a principal applies other educational measures short of having an assessment carried out.
As was outlined on Second Stage, a disability can often be obvious very early in a child's life. Therefore, there is no need to wait until the child begins school to start receiving the services he or she needs. Parents can apply to the health board for an assessment under this legislation as soon as they believe their child may have a disability. I fail to understand the precise point the Senator is seeking to address by inserting the additional provision that the principal can request the council to prepare an education plan under section 7 because, in any event, the parents have a right to seek it.
What is the position when parents do not request the council to prepare the plan? Section 3(1)(a) refers to parents notifying the principal; however, section 3(1)(b) states that the principal can form an opinion in respect of a student. What is the position in this case? Irrespective of what the parents decide to do, surely the principal should be able to make a decision, as is the case under section 3(3) where, having taken measures, the student is not benefiting from the education programme provided. Why can the principal not make a determination before trying to implement a programme if he or she feels he or she cannot provide for the educational needs of the student, without having to wait for the parents to make such an application or implement a programme in the first place?
I have little about which to disagree with Senator Tuffy in this regard. Where the special educational need is deemed by the principal of the school — who, as a professional, is rightly the first arbiter of the case because of his or her statutory status in education — to be relatively uncomplicated, there is a clear onus on the principal to take a sequence of actions culminating in the drawing up of a local education plan within the school and its implementation. Where it is deemed that the education plan is not working, it is my understanding that there is a clear statutory onus on the principal to serve notice on the National Council for Special Education to set a process in train, initially by calling on the special education needs organiser to put a team in place to draw up a plan for what is, subsequent to the delivery of the preliminary plan, deemed to be a more complicated special education need. Am I correct in this? If so, it renders superfluous Senator Tuffy's proposal.
Senator Fitzgerald is correct in that section 18(2) provides that the relevant special education needs organiser should give all such advice and assistance as is reasonable to the principal and teacher of the school concerned in the performance of their functions under this Act. The special needs organiser can link up with the parents and principal in an appropriate application to the council.
It still seems that the principal has to go through the motions because he or she knows it will not have any effect. He or she must still implement subsection (3) before seeking an assessment. That is my understanding of the section as it is worded.
Section 3 addresses the narrow issue of the functions of the principal in regard to the school. However, section 4 addresses the right of a parent to an assessment of a child by or on behalf of the health board or the council. That is a much wider provision. Section 3 simply addresses the position of the principal in the school. The subsequent provision relating to the special needs organiser is there to deal with any further co-ordination problems that arise.
Amendment, by leave, withdrawn.
Amendments No. 7 and 8 are related and may be discussed together by agreement.
I move amendment No. 7:
In page 7, subsection (3), line 43, after "an" to insert "individual".
Throughout the Bill, it is indicated that a child with special needs is an individual and that the plan would be an individual plan.
My amendments propose that the principal arrange for an individual assessment because each child has a requirement for an individual assessment and an individual plan to be carried out which would take account of his or her special needs. If accepted, my amendments would clearly identify a trend throughout the Bill. There is a lack of consistency in this section given that we are talking about an individual child's needs, an individual assessment and an individual plan. I hope that an individual plan for an individual student would take account of the student's special needs.
It is an individual plan for an individual student but the Minister had advised it is not necessary to state that in the legislation. The effect of the Bill is to confer on all children who have a special educational need, arising from a disability, a right to receive an assessment, an education plan and support services where these are necessary to meet their needs. Referring to an assessment an individual assessment or one which is to take account of the student's specific needs does not add to the rights which children with disabilities will enjoy once the legislation is commenced. The assessment does not take place in a vacuum. It is an assessment of an individual but is not an end in itself. The Bill is clear that where an assessment identifies that a child has special needs an education plan must be prepared to meet those needs and that plan must be implemented. It is surplus to requirements to refer to it as an individual plan or individual needs. That is inherent in the fact that the child has special needs.
I disagree with the Minister of State. A plan for an individual is an assessment. If one is talking about a school where there are students whose special needs vary slightly from one another and one is preparing a plan, that plan can relate to more than one student. Therefore, it is not an individual plan as such as set out in subsection (3). If one is talking about an assessment for a group of children, that is a group plan as distinct from an individual plan. The additional workload imposed on the principal and teachers of the school or whoever else is assigned that duty is enormous and it has consequences for children in the school other than those in the special needs category. It is important, therefore, that if there is a specific student with a specific need there is an individual plan specific to that student. That is the reason I seek an individual assessment and an individual plan rather than a global one that may embrace others or many, as the case may be, in certain schools.
I support Senator Burke's amendments. While the Minister of State has argued they are not required, they would add to the legislation and make it clear that what we are talking about is a plan for the individual's needs. The inclusion of these amendments would underpin the intention of the legislation and reinforce the idea of individual rights as regards the educational needs of a child.
I am not clear why Senator Burke deems it necessary to include the adjective "individual" because my understanding of the Bill was that at its core was the individuality of the child. That core principle is consistent throughout the Bill. Perhaps I have misinterpreted it but that was my clear understanding of what the Bill was about. If it was not about individuality and the individual needs of an individual child it would be going astray. I have no problem with the inclusion of the adjective "individual" if the Minister of State has no problem with it. I still regard it as superfluous because the subsection states "...arrange for an assessment of the student to be carried out". If an assessment of a student's needs is carried out it is for an individual student. One can draw up an education plan only for that individual student. I have no difficulty with the inclusion of the word "individual" if somebody can convince me it is needed.
Senator Ulick Burke seeks to insert the word "individual" and the concept of specific needs into section 3(3). In this regard it is important to consider section 4, which deals with the issue of assessment. Section 4(6) defines what is meant by assessment, which is the point the Senator is seeking to address in his amendments. It states:
An assessment for the purposes of this section shall include an evaluation and statement of the nature and extent of the child's disability (including in respect of matters that affect the child overall as an individual) [it is a specific assessment and an individual assessment] and an evaluation and statement of the services which the child will need [note the use of the definite article in reference to the child. There is no question of plural assessments or plural service plans] so as to be able to participate in and benefit from education and, generally, to develop his or her potential.
The definition of the assessment in section 4(6) employs the level of specificity which the Senator seeks to introduce into the preceding section.
In regard to section 4(6) I referred earlier to the use of the word "individual" and said it should be consistent throughout the Bill. That element is running through the Bill from start to finish. I do not understand the reason it is omitted from section 3(3). I am not sure of the appropriateness of the wording, "arrange for an assessment of the student to be carried out". The inclusion of the words, "to take account of that student's specific needs" would be far better as they would take into account the special needs of each student. With regard to the individual, if we want to be consistent as suggested by the Minister of State, individuality is provided for, as Senator Fitzgerald said, but why has it been omitted in this instance? Its inclusion would enhance the section.
Section 4(6) refers to an assessment for the purposes of this section and goes on to explain it while section 3(3) refers to the principal arranging for an assessment but it does not link the two. I thought that, perhaps, it was contained in the definitions but it is not. Senator Burke is concerned with continuity in the legislation. While "assessment" is defined in section 4(6), the definition is not linked to the reference to "assessment" in section 3(3). This represents a problem in the legislation quite apart from the issue raised by Senator Ulick Burke. While I do not know if this has been raised before, perhaps a definition of "assessment" should have been included in the definitions sections. If such a definition of "assessment" had been used in section 4(6), it might have dealt with the issue raised by Senator Ulick Burke.
Section 3 deals with the preparation of an education plan by a school while section 4 deals with the formal right to an assessment. Clearly, the drawing up of a plan will be influenced by the vista of an assessment. The council is given power under subsection (8) to issue guidelines to principals of schools on the matters to which they shall have regard before forming their opinions under section 6. The individuality of the entire measure is unquestionable.
Amendment, by leave, withdrawn.
Amendment No. 8 not moved.
I move amendment No. 9:
In page 8, subsection (4)(b), line 2, to delete “3 months” and substitute “1 month”.
A principal will have no more than three months to make a decision on a referral for assessment and such a referral will be arranged after consultation with parents. A period of three months may be considerable in the context of a referral. If a child is referred for an assessment at the start of the school year, it might well be Christmas or early in the new year before such an assessment is completed. A serious loss of time will be involved. If an assessment to put in place an individual plan for a particular student is made in January of the new year, it means the child will have lost out substantially. The organisation of an individual plan for a child within a mainstream school will subsequently cause very serious problems. While facilities would be in place to cope in a special school, within a mainstream school the peer group of a child beginning a plan in January will have started in September and advanced.
There is a great need for the Minister of State to shorten the period for which provision is made. It is within the competencies of the trained personnel and their facilities to accomplish what is called for within one month to lessen the impact of any delay.
Section 3 of the Bill has a purely school context. The Minister for Education and Science undertook in the Dáil to examine all the time limits set out in the Bill, which he did. In a number of instances, he reduced the timeframes involved or inserted timeframes where none had been provided. Such instances included requiring schools to begin the assessment process within one month and requiring the appeals board to hear appeals against a failure to assess within six weeks and deal with disputes between the council and the health board within two months. The Minister reviewed the time limit in question in the Dáil and considered it as part of his review. Having re-examined the provision, the Minister took the view that an outer limit of less than three months is an unrealistic target to set for all assessments.
I appeal to the Senator on the basis of — in the words of the Constitution — his practical knowledge and experience of the education profession. Many assessments require the services of a number of specialists and the principal or teacher is not on his or her own in this particular context. For that reason, the Minister decided to set the limit at not less than three months.
It is regrettable the Minister cannot see that the provision could be for one month rather than three. While I accept the Minister of State's comments on the professionals involved, it is within their professional capacity to implement my amendment. As other Senators and I have said over and over again, time is of the essence in this area. The provision as drafted is impractical. If the school year starts in September and a plan is implemented in January, the time in between will have been lost. It will be impossible for a child with special needs to make this time up in a mainstream school. The imperative will be to have as many as possible of the children with special needs in a school matching the pace of the mainstream. We cannot say we are doing everything possible within the timeframe when it is possible for the professionals involved to provide a plan within one month rather than three. The delay is significant and must cause concern to all involved.
Amendment, by leave, withdrawn.
Amendments Nos. 10 and 27 are related and may be discussed together, by agreement.
I move amendment No. 10:
In page 8, subsection (9)(a), line 31, to delete “child,” and substitute “child are involved in the preparation of the plan in a spirit of partnership and”.
The purpose of this amendment is to change the role of parents from being that of persons who are simply consulted to persons centrally involved in the preparation of a plan in a spirit of partnership. As currently worded, the section requires that parents are simply consulted.
Amendment No. 27 has a similar wording and is similarly aimed to involve parents in a spirit of partnership with the special needs organiser in drawing up a plan. I would like to hear the Minister of State's comments on the amendments.
As a parent and — in remote years — a teacher, I am very supportive of the Bill's provisions which bring parents more and more towards the centre of participation in the process. I have difficulty with the amendment for a couple of reasons. It is very difficult to define the role of "partnership". If one were to include the words "in a spirit of partnership", certain difficulties would arise in the process. Ultimately, a principal is responsible on a school campus. To promote in the process a spirit of partnership involving parents and special needs organisers as proposed in amendment No. 27 could lead to a blurring of roles and ultimate responsibility and accountability. While I am very supportive of the promotion of parental involvement and the rights of parents to have a say, be consulted and kept abreast of developments at all times, I consider the phrase "spirit of partnership" vague. It is not easily defined and could lead to difficulties in the process. The buck must stop somewhere. The Bill rightly and properly causes the buck to stop firmly and finally with the principal of a school in the educational campus situation.
I support Senator Tuffy's amendment. We have acknowledged time and again that parents are the primary educators. If our involvement of parents in this instance is that we will only consult the primary educators, we will have to think again. I hope the Minister of State will acknowledge the primary role of parents as the primary educators in all cases.
I acknowledge that role. It is written into the Constitution and it takes precedence over any legislation. The parent or parents are the primary and natural educators of the child and no legislation enacted in these Houses can ever detract from that. It is important to note that we are dealing with a subsection that imposes an obligation on a principal in regard to the preparation of an education plan. We are not talking about the rights of parents; we are talking about the duties of principals.
There has been much discussion in these Houses in recent years about rights-based legislation. One cannot have rights-based legislation unless one has clear corresponding duties imposed on specified individuals. Rights do not exist in a vacuum. They require further enforcement and their vindication requires the existence of corresponding duties.
Is this a pre-run of the disability Bill?
It a truism of all jurisprudence that without a duty, one has no right. Somebody must have a duty and the somebody in regard to this subsection is the principal. We are talking about a subsection addressing the duties of principals. Those duties in regard to the all-important function under the Bill is the preparation of an education plan, but the parent must be consulted as a matter of statute law under this legislation. The parent still has rights under the Constitution. That is not being argued, but as far as the principal's duty is concerned, the parent has a right to be consulted along with others.
To insert the phrase "a spirit of partnership" is to introduce a vague criterion. It qualifies the involvement of parents in a manner that it would be impossible to properly define. I regret to advise the House that it is difficult to give a precise legal context to the somewhat elusive political concept of a spirit of partnership, something which many of our political leaders extol and which is spoken of highly in great dialogues between the social partners. The spirit of partnership, as a matter of pure statutory draftsmanship, does not add a great deal, if anything, to the section. It introduces, a vague, somewhat elusive criterion for the relations between the principal and the parent. Under the Constitution the parents' role is supreme and throughout the Bill the role of parents is emphasised.
The Bill places an obligation on the principal not only to consult parents, but to facilitate their involvement in the preparation of the education plan. That is written into the sections. The proposal regarding an amendment to an education plan following a transfer between schools is a collateral amendment tabled by Senator Tuffy. This can only occur after informing the parents of the proposed amendment.
The rights of parents are carefully secured in the Bill as it stands. I am not persuaded and neither is the Minister that the introduction of a phrase referring to partnership adds to the certainty of rights as well as duties that we want in this legislation. If anything, it can be argued that it detracts from them because it is open to the principal to argue that the parent has been guilty of failure to observe the spirit of partnership as equally as it is open to the parent to argue that the principal has been in default in failing to observe the somewhat elusive spirit of partnership.
The way the legislation is worded gives rights to parents but they are limited rights. Parents can request an assessment or there are certain decisions they can appeal when an education plan is drawn up. I will deal with this point later, but parents cannot appeal in regard to the contents of an education plan in terms of what is required by the student, although they can appeal in regard to other aspects. The provisions of the legislation keep parents on the sideline and does not involve them centrally in the drawing up of the plan. That is the purpose of my amendment, which proposes they should be involved in a partnership manner in the drawing up of the plan.
The Minister of State said that by introducing the word "partnership", one is introducing uncertainty in the legislation. I am sure many members of the public would say they are not happy with the interpretation of the word "consult" when it is implemented in practice. That view could be applied to many areas where apparently there is public consultation. While people are of the view they are consulted, when it comes down to a decision their views are not taken on board. What we are seeking to achieve should be central to the legislation. It is to involve parents in the preparation of the plan and in deciding on its contents. Surely that is an objective we should have. If we do not insert it in the legislation, it probably will not come into play as much as it should. In many cases parents might be excluded from participation in the drawing up of the plan, except in terms of adhering to the basic notion of whatever it means to consult people.
There is always a right to appeal the contents of the plan to the council. We do not want to have disputes between parents and principals if at all possible under the legislation. I repeat that the legislation must delineate in clear terms the respective roles of these parties. I fail to understand how in this legislation the insertion of this phrase will add to rather than serve to confuse these roles.
Amendment, by leave, withdrawn.
Question proposed: "That section 3 stand part of the Bill."
I wish to re-emphasise the points I made regarding a delay of three months as distinct from the one month I proposed in making a decision on a referral and the specific needs regarding assessments and individual plans for children in schools. In regard to those two aspects, there is a possibility and potential for unnecessary delay when it is vital we must move quickly when a need has been identified and assessed.
Question put and agreed to.
SECTION 4.
I move amendment No. 11:
In page 9, between lines 36 and 37, to insert the following subsection:
"(2) Assessments required pursuant to subsection (1) may be carried out within the public or private sector.”.
This amendment indicates the position in terms of delay in this regard. I referred to the case of an emigrant who on returning home with her family, having been accustomed to adequate and sophisticated support mechanisms in the United States under their education system, found that the Department of Education and Science officials would not reply to an independent assessment she had had arranged to have professionally carried out, having realised the inadequacy of the service here. Where there is an obvious vacuum and shortage of specialised people to carry out such an assessment, I ask that the Department sanction and approve an independent assessment.
In any given year, only 35 additional special needs teachers are being trained in Mary Immaculate College in Limerick. We must recognise that there are professional people who can carry out such an assessment. To avoid further sentences on children owing to such delays, the assessments of such professionals, conducted at the parents' expense, should be recognised by the Department. Will the Minister of State allow for the recognition of assessments made through both the private and public systems given that doing so would not involve a further cost on the Department?
Is it not true that this matter is covered under the guidelines and regulations in the National Council for Special Education Order? Once specialists, whether operating privately or publicly, carry out the assessment within those guidelines, they are covered.
I suggest respectfully that the Department officials either do not officially acknowledge those assessments or just avoid them to make sure they are in control. I do not know the reasoning behind their decisions, especially in respect of cases where everything was done legitimately. I refer particularly to an instance with which I am very familiar and which I have raised twice with the Minister. It has been ignored by the officials in the Department of Education and Science since last November. One cannot have it both ways. What is envisaged will not happen with a throughput of 35 new special needs teachers per annum.
In response to questioning by Deputy Enright, the Minister admitted clearly in the House recently that some will win and some will lose. These are his words, not mine. Obviously, bearing in mind that he admitted the inadequacy of the new model he is introducing for the allocation of special needs teachers where they are needed, this situation cannot continue. The process should be opened up through recognition of private sector assessments.
On the basis of my own case work, I am well aware of the issue Senator Ulick Burke is raising, namely the existence of a State psychological service under the aegis of the Department. I take it he is raising the point that, parallel to this, many parents have recourse to the private sector to obtain psychological reports, yet when they submit them to the Department under the present system they are not recognised.
In the other House, both Deputies Enright and Stanton made the point that the experts permitted to participate in the assessment process should have recognised qualifications. Building on that, we now have section 5 of this Bill, which is worth examining. I am sorry to have to anticipate, but the point that has been raised by the Senator——
That has been the case all evening. The Minister is running ahead.
The Senator made a fair point, with which I am more than familiar. The Bill states: "An assessment under section 4 shall be carried out with the assistance of persons possessing such expertise and qualifications as the health board or the Council considers appropriate." We have made provision to address the issue raised by the Senator. Furthermore, the Bill states that those persons may, in the discretion——
The word "may" is used.
——of the board or the council, include one or more of a list of qualifications outlined. The list of qualifications is not really material to our discussion. However, what is material to it is that we have given power through the council, which is an independent statutory body, to address this issue. There will not be a full stop at departmental level regarding who can be recognised to carry out the assessments. In other words, we have said it is a matter for the principal, the health board or, on ultimate appeal, the council to prescribe whose reports should be recognised.
In the spirit of what the Senator has advocated, I hope the council will have regard to avoiding duplication, which has bedevilled this area. One reason we are establishing the council is precisely to avoid this kind of duplication. I do not know whether, as a statutory exercise, it would be appropriate for us to tie down the council by stating that assessments required pursuant to subsection (1) may be carried out within the public or private sector. From the generality of what is already provided in section 5, it is clear that such assessments can be carried out within the public or private sectors. There is no restriction in the Bill regarding the matter the Senator has raised.
As an interim measure, will the Minister of State assure parents who have assessment reports prepared by professionally recognised persons in the private sector, lodged at present in the Department of Education Science — they may be in the dustbin at this stage — and awaiting recognition, for want of a better word, that these reports will be acted upon so delays will not cause children to lose out? It would be a gesture of goodwill, if nothing else, if the Department accepted that those assessments already submitted will at least be acknowledged and acted upon within the current framework.
They are not consigned to a dustbin——
They are close to it.
——but there is a current framework. We are talking about a revised legislative framework. I draw the Senator's attention to section 5(6), which states: "In carrying out an assessment under section 4, the health board or the Council, as appropriate, shall have regard to any relevant assessment of the child concerned that is available to it at that time." The right to have regard to those assessments is fully written into this legislation.
It states "will have". What about the assessments that are currently lodged?
All legislation speaks in the future tense, as the Senator is well aware. In addition, the council can actually specify that the report of a person in the private sector shall be the ultimate report on the matter.
On the current practice in the Department, I know the Department is seeking to deal with all these matters with expedition. It does have regard to private sector reports but ultimately relies on its own expertise. That position may change under this legislation.
Amendment, by leave, withdrawn.
Amendment No. 12 in the name of Senator Tuffy is ruled out of order due to a potential charge on the Revenue.
Amendment No. 12 not moved.
I move amendment No. 13:
In page 10, subsection (5), lines 7 to 9, to delete paragraph (a).
This amendment is to strengthen the parents' role by reducing the power to refuse an assessment. I would like to hear the Minister's comments on it.
If the health board or council refuses to accede to a request, the parents of the child have a right to appeal against the refusal to the health board. The council or health board should have the power to refuse a request for an assessment where they genuinely believe there are insufficient grounds to support the view that a child has special educational needs. If they had to carry out an assessment in the belief that none was required, it would undermine the statutory scheme we are trying to frame and would also amount to a misuse of resources. A parent can appeal a decision to refuse to accede to a request and a decision on this appeal must be taken within six weeks. Therefore, the position of the parent and child is adequately protected.
Amendment, by leave, withdrawn.
I move amendment No. 14:
In page 10, subsection (6), line 13, to delete "section" and substitute "Act".
This amendment is related to the point I raised earlier. It is incorrect for subsection (6), as it is now worded, to read "An assessment for the purposes of this section...". It should read "An assessment for the purposes of this Act...". Alternatively, "assessment" should have been defined in the interpretation section, section 1, just as "education plan" and "council" are defined therein. Section 4 does not make it clear that the assessment referred to is always the assessment defined in subsection (6) of this section. This omission could be dealt with by replacing the word "section" with the word "Act" in this subsection. There are also other ways of addressing the issue.
As I understand the position, this amendment is no longer necessary. As a result of changes made in the other House to the published Bill, school-based assessments must also include a statement of findings as an inherent part of the assessment process and the timeframes that apply thereto. The same criteria apply to the different types of assessment in the legislation. There is no need to substitute "Act" for "section" because the difficulty has been addressed in the other section.
Amendment, by leave, withdrawn.
Amendments Nos. 15, 16, 20, 24 and 25 are related and may be discussed together, by agreement.
I move amendment No. 15:
I leathanach 10, fo-alt (6), líne 18, tar éis "potential", "and shall take account of the child's cultural background and linguistic needs" a chur isteach.
Is é atá i gceist sa leasú seo ná an deacracht a bhíonn ag daoine nuair nach bhfuil a dteanga ar a dtoil ag na daoine atá ag déileáil leo agus nuair nach bhfuil tuiscint acu ar a gcearta. Pléadh na deacrachtaí céanna anuraidh i gcomhthéacs an Criminal Law (Insanity) Bill maidir le daoine a bheith á gcur isteach faoi bhrú in ospidéil mheabhairghalair. Bhí alt san mBille a bhain le cearta an othair agus an tábhacht a bhain leis na cearta sin a mhíniu dó. Mholas an uair sin go mbeadh sé de rogha ag duine a tháinig ón nGaeltacht, mar shampla, go míneófaí an méid sin dó ina theanga féin. Is é a dúirt an tAire an uair sin ná go raibh an-seans ann gur ó na hOileáin Fhilipíneacha nó ó áit eile tríd an domhain a tháinig an dochtúir nó an bhanaltra, and that is perfectly understandable. Ach, an rud a bhí i gceist agam ná go bhféadfaí, ar a laghad, an rud a chur ar fáil don othar ina theanga féin — it could just be written out. Tá an cás atá á phlé againn anocht an-chosúil leis sin.
Níl na leasuithe seo ag díriú isteach ar Ghaoluinn amháin. I often have differences of opinion with groups in the Irish language lobby. As a great supporter of the Irish language I have spent most of my time arguing with many of the eagrais Ghaoluinne. However, this shows a progressive and forward thinking view from groups like Comhdháil Naisiúnta na Gaeilge and others. Is é atá á mholadh acu is not confined to people with Irish or people as na Gaeltachtaí but also to immigrants. In our multicultural society, it is crucially important that a person's language background be taken into consideration.
I will outline some examples. The Department of Education and Science regularly gives consideration to this issue. Is cuimhin liom an tráth a bhí mé i m'oide óg ag tosnú ag múineadh Béarla i mBaile Lúidín or Blanchardstown. It was my first teaching job.
Ní Baile Lúidín atá i gceist.
There are various Irish forms of the name. Baile Bhlainséir is what people call it also.
Dhein an Roinn Poist agus Teileagrafa botún ansin i bhfad ó shin.
The difficulty of not respecting people's language is borne out by the Minister of State's tale. He is absolutely right. When I moved jobs I came to a place in north Dublin called Man O War, which was a corruption of Meán an Bhóthair. It was perfectly understandable that Meán an Bhóthair would become Man O War until someone in high authority decided to call it Long Cogaidh.
Blanchardstown became Baile Lúidín as a result of a mistake in the signage section of the post office.
It is always as a result of a mistake. Such mistakes are evident all over the city. However, they impact culturally. Throughout this city one finds this lack of understanding of cultural background. There is a place on the north side of Dublin called Larkhill. Before the city spread it was in the middle of a wood and was called Lár Coille. Lár Coille became Larkhill. However, it has now become Cnoc na Fuiseoige.
We are talking about na deacrachtaí a bhíonn ag daoine nach bhfuil a dteanga ar a gcumas acu siúd atá ag obair ar rudaí mar the educational plan. Nuair a bhíos féin ag múineadh there was a huge debate as to whether Ladybird books, for example, should be used in Irish primary schools. All teachers used them. I am sure Senator Fitzgerald used them and so did I. The Department of Education was vociferously opposed to them because they did not reflect the cultural background and values of the children. Peter and Jane were not the children we were teaching. That was true but, as teachers, we used the books because they were valuable in other ways.
Does the Senator wish to get an answer from the Minister of State to this amendment? We must conclude at 8 o'clock. This has been an interesting discussion but he may wish to focus on the amendment.
I have much more to say on this issue. We will return to this tomorrow morning.
I would like you to listen closely, a Chathaoirligh, because I am trying to illustrate that people who are well intentioned but are not rooted in the background, beliefs, cultural values and language of the people with whom they work find themselves in difficulty. There is no shortcut around this.
The Minister of State will remember the introduction of the Stay Safe programme. It was found utterly unacceptable to import the very good and similar programme being used in the United Kingdom. We had to adapt the programme to meet Irish needs. Similarly, when we introduced remediation in Gaeltacht areas, chuir Muintearas feachtas ar bun in gConamara chun féachaint ar conas ar chóir an rud a chur ar fáil. An rud a dheineadar an uair sin tuarascáil a chur ar fáil a raibh a lán moltaí inti. Moladh, mar shampla, go mbeadh Gaoluinn agus tuiscint na Gaoluinne ag na siceolaithe a bheadh ag déileáil leis na leanaí.
Progress reported; Committee to sit again.