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Seanad Éireann debate -
Wednesday, 13 Jul 2022

Vol. 287 No. 6

Education (Provision in Respect of Children with Special Educational Needs) Bill 2022: Committee Stage (Resumed) and Remaining Stages

SECTION 7
Debate resumed on amendment No. 1a:
In page 8, line 43, after “Council” to insert “, pursuant to section 37A of the Act of 1998”.
- (Senator Rónán Mullen).

I welcome the Minister of State to the House. I do not think I did so earlier. The background to this issue is that special classes in mainstream schools combine the benefit of a much-reduced teacher: pupil ratio and special needs assistant, SNA, support with opportunities for children to engage with inclusive learning practices during the school day in mainstream classes with their friends and peers. I acknowledge that if we look at the barometer of progress in this area, the National Council for Special Education, NCSE, list of special classes in mainstream schools for 2022-23, we can see just over 2,500 special classes in 1,266 primary and post-primary schools. More than 14,000 children with additional learning needs are enrolled in these classes. This compares with 511 special classes listed in mainstream schools. I acknowledge that there is significant and welcome State investment in special class provision in mainstream schools. It is much needed and it is happening.

I say this because at the back of this legislation lurks the question of resources. It is all very well to impose obligations on people to co-operate. None of this is possible, however, unless the resources are available. Enhanced funding is required to adapt existing classrooms to meet the needs of children attending a special class. It cannot be assumed at any stage of this process that any available space is suitable, for example. In passing, I will mention that the initial funding for such adaptation must be easily accessible, substantial and co-ordinated. The current allocation of €6,500 for such initial adaptation is inadequate in many cases.

We cannot have some of our most vulnerable children in unsuitable prefab accommodation while delayed tendering, planning and other issues hold up proper provision. We are saying here that special classes require more than buildings. The need for support and training must extend beyond the initial set-up. It is key that there would be multidisciplinary support available for children in these classes, such as speech and language, SLT, support, occupational therapy, OC, and access to educational psychology. All these elements are of paramount importance and they must go beyond tokenism.

Therefore, it would be blinkered to view the amendment of section 37A proposed in this legislation outside those factors. Progress on the concerns I mentioned around resourcing and seeing everything involved in this context would greatly negate the need for such provision. We must build on the spirit of co-operation that is evident in the vast majority of schools. My amendments, then, are, ultimately, all the same, in the sense that they relate to the Department attempting, it seems, to have two processes work in tandem regarding the provision of special classes in schools. The first is the requirement for patrons and boards to co-operate with the NCSE in respect of the provision of special classes. The second is to ensure that patrons and boards comply with a new, shortened version of what is termed a section 37A process, which is the formal process by which a school can be required to open a special class.

I am happy with both processes working in tandem up to a point. This is what will occur in the vast majority of situations that arise. However, what happens if there is apparent confusion? The proposed legislation requires patrons to "ensure cooperation by" a board with the NCSE’s functions in relation to the provision of special education "by the provision and operation of [special] classes when requested to do so by the [NCSE]”. Is this about the section 37A process or is it not? That is now streamlined and that is welcome. It involves a report from the NCSE, a notice in writing from the Minister, a draft direction and then a direction. Therefore, a process is intended. It starts with a report by the NCSE and it ends with a direction by the Minister. Everybody is then required to comply. At the same time, however, if the legislation is envisaging or providing that there shall be co-operation when that is requested by the NCSE, is that saying that if the section 37A process is not involved there is then a legal obligation to comply with something much blunter?

This seems to be introducing confusion and contradiction into the law. There is a process in place. There was worry about how the process was working, so it has been streamlined. At the same time, however, there is this vague legal obligation to ensure co-operation with a request from the NCSE. The only way in which a patron can ensure the co-operation of a board is to dissolve it, pursuant to section 16 of the Education Act 1998. I contend that it would not be appropriate for a patron to require a board to provide a special class when requested by the NCSE to do so unless that request is grounded in a section 37A process. If it is to be grounded at all times in the section 37A process, why does this legislation not say so? My amendments seek, and have sought, because three of them were already dealt with before I came in, three minutes late, the same objective because it is essentially the same amendment across different sections. It is simply stating that what we are talking about here at all times is a section 37A process. If this is what is meant in the legislation, then my amendments need not be controversial.

I must point out to the Minister of State the context here of putting an obligation on a patron to require a board to provide a special class when requested simply by the NCSE to do so and not on foot of a direction from the Minister. We must remember the circumstances involved and that a patron only gets to approve a board when it is put together first. Thereafter, however, the only sanction available to a patron is to dissolve the board, for which the approval of the Minister is needed. Therefore, it should not be the case that the ultimate sanction available to the patron, namely, that of dissolving a board, should be required to be triggered simply because the NCSE does not regard a school as co-operating sufficiently. That would be bypassing the entire process. Where differences of opinion exist between a board and the NCSE, section 37A is the required process to be engaged in. This legislation should not undermine that process in any way.

I do not think the patrons have a problem with the obligation of compliance being put on them. It is already there in section 37A. I would be happy if the Minister of State were willing to confirm on the record that in her view, patrons are co-operating with the process, because that is my understanding. Is it being suggested that they are not? Is being suggested that there is widespread non-compliance with section 37A by patrons or boards? If so, the law is there to ensure compliance. It is obligatory to comply with section 37A. Therefore, it is not understood, and I do not understand, why this kind of parallel obligation is being created to ensure co-operation by boards with the NCSE in a way that seems to suggest that we are not talking about section 37A at all. This is horribly vague. What does "co-operation" mean? This is another question. Are we in the situation here where politics is informing the drafting of legislation and that we are choosing the sloppy over the specific to make a political point or to be seen to be doing something? That is not what legislation is about. Legislation is about placing precise obligations on people, which if not followed, bring a sanction. This is what I thought section 37A was all about.

I repeat my request to the Minister of State to confirm if it is her view that patrons are co-operating with the existing process. I also ask her to give me a direct answer regarding whether this legislation, in her view or as a matter of objective fact, envisages that a patron or board could come under an obligation outside of the section 37A process under what is proposed in these sections? I ask because I do not understand why this is happening, if we have a process that is in the course of being streamlined in this legislation.

On those two questions, is the Minister of State happy to confirm that patrons are co-operating with the process? Does this legislation envisage something outside of the section 37A process under which a patron or board of management could be in non-compliance with the law? If so, how is that reasonable, given that the only possible sanction a patron has is, with the support of the Minister, to seek the dissolution of a board under section 16 of the Education Act?

Co-operation should be required by the patron and the school with the National Council for Special Education, NCSE, in respect of its functions, particularly as regards the provision of special classes, but there is an issue with requiring a patron to ensure that a board will provide a special class simply upon request by the NCSE outside of the section 37A process. First, this bypasses a process that is structured for a particular reason. Second, a patron has no power other than the dissolution of a board.

If the words “pursuant to section 37A of the Act of 1998” are added to the text in the sections as I have suggested in my amendments, patrons and schools will still be required to co-operate with the NCSE on special education, in particular special classes, but the proposed shortened version of section 37A will be the one that is required to be followed in cases where more serious differences arise between the school and the NCSE on the provision of a special class.

Will the Minister of State confirm that patrons are co-operating? Is there some process outside of section 37A under which patrons and boards of management could find themselves outside of the law? If so, how is it fair, given a patron's absence of power to ensure compliance other than seeking the dissolution of the board? Is what this provision is really meant to do is to give some va-va-voom to the operation of section 37A by being specific about the obligation on patrons to be in compliance under the Education Act? No one has a problem with that, but we should specify that we are discussing section 37A.

I apologise for being late to the debate.

As Chair of the Oireachtas Joint Committee on Autism, and as a parent, I hope that we never have to invoke section 37A. We should not have to. This country should have an inclusive educational system and we should not need to introduce legislation to ensure that a child is educated in his or her local community with his or her siblings. Unfortunately, that has had to be done in recent months, particularly in Dublin. It is well documented in the media that nearly 100 families do not know where their children, who have needs, will go to school next September. This is 2022 and we are a First World country, so that is unacceptable. We should not need to be here introducing this legislation.

Due to our debate, and given that the issue has been highlighted in the media, I would like to believe that we will never have to invoke this legislation. Where there is a capacity issue in a primary or post-primary school of any denomination in Ireland, the school will immediately make capacity available once consulted by the NCSE or the Department and resources will be put in place by the Department, which it and the Minister of State have committed to doing.

From today, I would like us to never have to invoke this legislation. We should not have to. No primary or port-primary school should do anything to inhibit a child in getting an education in his or her local community. That would be unacceptable in this day and age.

I agree with Senator Carrigy's sentiments. The origin of this debate lies in the unacceptable situation of a lack of school places for nearly 100 children in September, but there is a process that has to happen for everything. If I ring a board of management and tell it that it should provide a special needs class, it will ask me who I am, whether I know a class is needed, whether the resources are in place and whether there is a gap in the area. Processes exist for everything in order to ensure that things are done right and that taxpayers' money is used in the best possible way to secure the best possible outcomes for the people who need them most. That is what I understand section 37A exists to do. The Minister of State has identified problems with section 37A and sought to streamline it, with which I have no problem. I am only asking about why there is what I read to be a bypassing of section 37A. Surely, a phone call or letter from the NCSE is no substitute for an official process. The official process does not need to take long. If section 37A is an unacceptable way of dealing with the matter, then get rid of it. Clearly, the Government intends to proceed logically and it has streamlined the process to shorten the time for the necessary consultations. Before anything is done for anyone, consultation is needed. Does section 37A make sense or not? Is it being asserted that there are situations where section 37A is not appropriate? If so, then an argument is being made that, despite all this process being provided for in legislation, there are cases where it is completely irrelevant. If so, then say it. I have not heard it being said, but maybe I have not been listening well enough. I am worried about the confusion.

Before I invite Senator Carrigy to contribute again, I welcome the Minister for Finance, Deputy Donohoe, to the Chamber. I am sure he would like to stay longer in one of these seats, but I am sure he is enjoying where he is at the moment.

It is a fact that the last two times that section 37A was invoked it took, respectively, four months and up to 18 months of discussions. We have children who need a school in September so discussions cannot take up to 18 months to decide whether we have schools places for 100 children and their families. That is why the process is being streamlined back to eight weeks to prevent a situation where there is a lack of places. The NCSE is charged by the Government and the Department to identify where need exists and, therefore, the NCSE needs to hold discussions with the local school.

I fully support this legislation and the provision to streamline the decision time to eight weeks. I reiterate that I hope that we never have to invoke section 37A again because I believe that no school should put any barrier in the way of making a place available for a special class in the school and I believe that every special class should be at the heart of every school.

I understand that Senator Carrigy has said that section 37A exists but should not have to be used and something quicker should be possible. He may well be right about that. My understanding is that is what the streamlining of section 37A is all about.

If there is a need then let us call it an emergency process, call it section 37B and make it clear that the new section is separate from section 37A. My problem with this legislation is that it is not at all clear that what is being proposed is some kind of bypassing of section 37A. The provision hangs out in the air and there is an ambiguity in the law. On reading the Bill, it could well be that the NCSE issues a direction and it must be co-operated with under this legislation. The implication of that is that section 37A is being bypassed and is to be bypassed in certain situations but if that is the case then say it, call it section 37B and call it an emergency requirement. Nobody is saying legislate the way you want for precision but this is anything but precise because one has a streamlined and cleaned up section 37A, as I understand it.

I presume the Minister of State is proud of the new section 37A and would be happy to stand over it, so that is what is there. Without saying it, however, this legislation is leaving a vagueness and it is not entirely clear how this will be interpreted in future, which is not a good idea for legislation.

It seems to be saying at the same time that the patron and the board will have to co-operate with the NCSE anyway and that section 37A need not matter, even in its streamlined form. There is a position where a patron of the board is being asked to ensure co-operation by a board in circumstances where the only power it has to ensure such compliance is to sack the board, with the approval of the Minister. Is that the scenario envisaged?

I revert to my questions. Is the Minister of State happy with the way patrons are currently complying with these procedures in legislation and are they doing their best? Is the situation as I describe it?

In section 37 of the 1998 Act there are subsections (1) to (6), and within subsection (6) there are paragraphs (a) to (f). Is there a section 37A that I am not seeing?

This legislation would amend section 37A of the 1998 Act, as amended.

That is what I am looking at.

This relates to an amendment of section 37A. My point is that surely it is where the action should be taking place. It is not yet clear to me that there is not some other power that cuts across section 37A being given or some other obligation that cuts across section 37A being placed on patrons in circumstances where they do not have the necessary role in order to ensure compliance. I am asking, therefore, that the whole thing be brought into conjunction with the new amended section 37A of the 1998 Act, as amended.

It is interesting to hear the different contributions. I thank Senator Mullen for his contribution and I will deal with it momentarily. I thank Senators Dolan, Seery Kearney and Carrigy for their contributions also.

I should be clear that this is a two-step process. Co-operation, by its nature, is not 100% binding. Most people would be aware that the vast majority of schools co-operate, through the patrons mentioned by the Senator, and open special classes. As Senator Carrigy pointed out, not all do, and in those particular circumstances we have no option but to issue a section 37A notice.

I am proud of today's legislation but it is bittersweet because we should not have to bring the legislation before the Houses. I hope we reach a point where every school in Ireland will have special classes. I announced earlier that we will have 15 additional special classes opening next September, and it was agreed in the past number of weeks that they would open.

On the Senator's amendment, this Bill provides additional functions to be assigned to school patrons, schools and boards of management to co-operate with the NCSE when approached by the council to provide additional special classes, as I said. I know one school management authority, the Catholic Primary Schools Management Association, contacted the Department and have had discussions with it around some concerns, which really echo what Senator Mullen has said in this Chamber. There is a misperception that in some way the Department, the NCSE or I could bypass section 37A provisions when compelling schools to open special classes. That is not the intention of the provision; it is and will continue to be a two-step process.

In accordance with the new function being placed on school patrons, schools and boards of management, the NCSE will continue to work and engage with schools to open special classes in line with their functions under the Education Act. As I said, the vast majority of schools co-operate with the NCSE in this way. For those schools that do not co-operate, the section 37A process will be considered and used where necessary. The two-step approach is reflected in the Bill in sections 3 and 5, which provide for a school patron and board to comply with any direction under section 37A as a separate and distinct function from their new obligation to co-operate with the NCSE in opening new special classes in general.

As I said, the Department has been engaging with that school management authority on the matter to allay its concerns. On our previous occasion discussing special education in the context of this Bill, I indicated there has been close consultation and engagement with the Office of the Attorney General. The concerns raised by the Senator do not arise and it is right and proper that we should be adding these functions, so I cannot accept his amendment.

The Bill is not proposing that a patron would have to consider dissolving a board, as the Senator mentioned, other than where a board fails to comply with the section 37A direction. There is no need for that to occur when there is a request to co-operate with the NCSE.

I thank the Minister of State for her reply. I am very clear about her intentions, which seem very sensible. What I am less clear on is whether the legislation as drafted or presented to us entirely expresses her clearly stated meaning in line with what she has just said. I note the Minister of State said co-operation is not ever 100% binding. She is making it clear to me that whatever way this is interpreted, there is no non-compliance save non-compliance with the section 37A process. She is saying the patron shall co-operate and shall ensure co-operation with the NCSE by the provision and operation of the special class or classes when requested to do so by the council. The Minister of State is clearly talking about something other than the end of a section 37A process, because that is initiated by the Minister. At least the notice and later directions are initiated in this way.

The Minister of State is saying the patron shall ensure co-operation by the board by the provision and operation of a special class or classes when requested to do so by the council. A patron might want to do it or a board might want to do it but for all sorts of reasons, it might not be possible or happening. It make take a section 37A order and that is why the provision is there. If the patron is required by law to ensure co-operation by the board by the provision and operation of a special class or classes on request from the council, how is the patron to ensure such co-operation?

The Bill also requires schools to reflect this in their admission policy and statement. The Senator can take it that the NCSE is not going to contact or approach a school in circumstances where it is not of the view that it does not have sufficient capacity to open a special class. This is a two-step process and I am correct in what I have said, which the Senator repeated, about co-operation not being 100% binding because it is not. These are additional provisions and functions to comply. If the school does not comply, the section 37A process is the next step.

There is an opportunity for schools to co-operate where the NCSE approaches them. They can comply and open a special class. In circumstances where that does not happen, the section 37A process will kick in. That is the essence of the point. I acknowledge the Senator's comments and I appreciate his acknowledgement of the significant State investment that has gone into special education.

He referred to the resources and supports we have put in place and the two and a half special classes. The majority of those special classes are delivered through the co-operation of patrons, boards of management and school staff. In Dublin, we have reduced the list of children looking for a special class from 56 to approximately 35 and we hope most of the remainder will be able to get a special class by September. However, we cannot keep doing this year in and year out. It is not fair on the families who suffer enormously and are exhausted from having continually to fight against the State to provide them with the equal right to education to which their children are entitled under the Constitution.

In the first instance, we are asking schools to co-operate if the NCSE approaches them. Obviously, they can always volunteer to open a special class in other circumstances but where the NCSE is of the view there is insufficient capacity, it will approach a school. We hope those schools will co-operate and open a special class or additional special classes. If a school does not co-operate, the section 37A process will kick in. That is what this Bill is designed to do. As Minister of State with responsibility for special education, I consider it very important legislation because there should be no child with an additional need who does not have an appropriate placement, whether in a special class, a special school or in mainstream provision.

The Minister of State will get no argument from me on that point, nor from most people involved in education, including patrons. This series of amendments are really all the same but they relate to different processes. As she noted, they relate to the provision in another section regarding admission statements.

The provision is not that the patron shall co-operate in regard to the provision of a special class or classes. The legislation does not say the patron of the school shall have an opportunity to engage with the NCSE around the provision of operation. It says the patron of a school shall co-operate "by the provision and operation of a special class or classes". The law is putting in place an obligation to co-operate in a particular way. In effect, the law is saying that the patron of a school shall ensure the provision and operation of a special class when requested to do so by the council. On any reading of this legislation, that is a contradiction of the section 37A process.

If the obligation were there and there alone, there would be no need for a section 37A process because it would already be a requirement that the patron shall co-operate by the provision and operation of a special class. The wording does not refer to a requirement to co-operate in the provision; it refers to a requirement to co-operate by the provision. There is an obligation on the board of management to co-operate by way of the provision of special classes. The legislation is crystal clear that it is creating an obligation on the patron to ensure the board provides. That is the confusion I see in this. I am with the Minister of State on the desirability that provision would be made in all circumstances, but I am not with her on the confusion I see, which is being caused by decoupling these obligations from the section 37A process.

We all want to see more places for children with special needs. That is the overall intent. The boards of management and patrons of schools are probably reflecting on and discussing this new legislation that is coming on board. Boards of management have an obligation generally to ensure there are classes for children. That is what they do and it is the purpose of schools. They provide classes in which children can learn. We are seeking to ensure that children with special needs are not put into separate special needs schools that are only for certain children with certain abilities. It is about ensuring that our society would, for the most part, seek to have children of all abilities learning together. I recognise that children with severe and profound needs may have to be dealt with in other ways, but the objective is that most children in this country should be able to attend schools and all boards of management should have a responsibility to provide education. That is at the core of what a board of management should be doing. I acknowledge that Senator Mullen is coming at it with the intent of ensuring that we have more places. For me, it is about places for all children.

From my reading of them, the purpose of the provision in the 1998 Act and this amending provision is to set out a chain of responsibility and decision-making obligations. By stitching in the provision that the patron shall co-operate, it puts an obligation on the patron to ensure the school is complying. This will ensure there is nowhere in the chain of decision-making in which there can be any abdication of the responsibility to make provision for a special class or special provisions within a mainstream class.

Section 8 of the principal Act, which is amended by this provision, is about the role and obligations of the patron. This proposal strengthens those obligations by specifying there shall be co-operation rather than allowing any opportunity for patrons to sit it out and leave special education provision to the board of the school. There has been evidence of school boards attempting to avoid making that provision. By stitching in an obligation on the patron, requiring that the latter shall co-operate with the NCSE and shall provide special classes, it ensures that everybody who is in a decision-making position is obligated to act.

The section 37A process, even in its truncated form, involves several stages. It is the council that issues a report, and that report is quite detailed. The specifications that shall be required within that include consideration of existing provisions, buildings, capacity and other matters within a school. All of that is taken into account and it is the report on it that is acted on in notice. There is a 14-day engagement period in which representations can be made, then a draft direction and then another 14-day period. The obligation is that schools and patrons shall act to ensure provision of special classes as close as possible to every child's home and community. That obligation is rightly being put in and rightly being strengthened prior to the triggering of the 37A process.

It is right that this process should apply prior to the operation of the 37A provisions. It should not come to it that an additional notice is needed. The process is the issue of a report, the notice period of 14 days, a draft direction and then another 14 days before documents are issued to say action must be taken. It would be shameful for any school to reach that stage. It is the nuclear button, but there is a process that comes before it. The object of the amendment to section 8, as I see it, is to strengthen the obligation on every party in the decision-making process.

I am becoming a little confused. If it is shameful that section 37A would ever be invoked, why is it there at all?

It is there because some schools are not meeting their obligations.

Why is it needed? If we are creating an earlier obligation on patrons and boards to provide, then we need simply provide for sanctions. We would just move to the sanction stage if they are in breach of the requirements. The only reason for a 37A process is if it is somehow a rational thing.

It would not be there unless it is a legitimate process. If a process such as this is being put into legislation but it is meant to carry some kind of badge of shame if it is ever invoked, I do not know of any precedent in legislation for such a thing. We are either saying that it makes sense that such a process would take place at some stage or, if it is a matter of shame and the implication of there having to be a section 37A process is that somebody is doing something wrong, then it should not come to a section 37A process but, rather, to sanction.

That links back to what Senator Seery Kearney said. She used the word "obligation". If we are talking about putting an obligation on the patron - the patrons want to be involved - then the language should be that patrons shall work to secure or, as far as practicable, ensure compliance or co-operation by the board of management with requests to provide special education. When that does not happen, one then moves to the section 37A process because a person is making an argument, the strength of which may be a matter of debate, against doing what he or she is being asked to do. If we turn legislation into some kind of shaming process, we are missing the point. We need to provide for what ought to happen.

If what is being created is an obligation on the patron of a school to ensure the board moves to provide a special class without a section 37A process, where is the power of the patron to do that, short of dissolving the board if it does provide such a special class? That is the logic. Is the Minister of State saying that if the patron does not co-operate, it has broken the law? We must remember that the patron has to get the result; it is not that it has to ask. It is not that the Bishop of Elphin has to ring up the board. I happen to be the chairperson of such a board. I could receive a phone call to tell me I need to co-operate and take a decision. If I say the board members are the people who have to run the school, what does the patron do then? Does the Minister of State want the patron to move to dissolve the board? She is the one putting in this obligation. I am not asking her to take it out; I am just asking her to link it back with section 37A and to provide that if there is not co-operation, then section 37A shall apply. The problem relates to the language of putting an obligation on a body. It is difficult to think of an analogy. Is it like asking President Higgins, as Commander-in-Chief of the Defence Forces, to ensure compliance by the Defence Forces with an obligation that we are going to put on them in law? It does not make sense as it is phrased and it needs to be linked back to section 37A. I do not think I can put it any further.

The distinction is that the obligation is there and the "shall" is there all the way through, from day one, once this becomes law. The difference is that, prior to the section 37A process, there is discretion at school and patron level as to how it fulfils that obligation. It decides how it will meet the need for the places. Once the section 37A process is triggered, the school will be told how to do it. The section sets out the details in terms of the requirements of the report in respect of existing building projects, etc. It sets out exactly how it will be done.

It is a difference between a voluntary process whereby the school, of its own volition, decides it will use a particular room or deploy the assets of the school in a certain way and getting into a section 37A process involving a report being prepared, notice being given and a draft direction being issued, followed by a ministerial direction. In the latter case, how the response is manifest will be taken out of the hands of the board. That is the difference.

At all times, however, the obligation of "shall" is there and needs to be there. I have sat in a room with school boards and heard them put out every excuse under the sun for why they are not providing places for children with special needs. We need to move to a place where it is mandatory to do this and the board can comply with the mandatory obligation in its own way or in the way the Minister will issue. Those will be the choices.

The Department of Education provides support for training of school boards of management. The departmental website states that the five core modules are the board as a corporate entity, employment law, financial management, legal Issues and child protection guidelines. There is the potential to expand the training of school boards of management. The Minister may wish to consider it being expanded to include the elements relating to this issue.

This seeks to make the word of the NCSE law on this matter. Once the NCSE looks for it, it has to happen. What Senator Seery Kearney is basically saying is that section 37A is merely the process by which it will be made to happen if the patron does not comply with the obligation to ensure co-operation by the board of the school in providing the requirement or fails to ensure that co-operation. If the patron fails to ensure co-operation by the board of the school with a request by the NCSE to provide a special needs class, that is a fairly serious matter. In such a case, will the Minister of State support a request by the patron to dissolve the board of management as a result of its refusal to comply with the patron's attempt to ensure it provides the special class? Is that her position?

If the patron takes a serious view of the refusal of the board of management to comply with the patron's obligation to ensure co-operation, what will be the response of the Minister of State? Once the NCSE looks for the special class or classes, the board has to provide it. That is what we are being told here. If the response of the patron is to seek the dissolution of the board of management because it has failed to co-operate with the patron's efforts to comply with the amended section 8 of the Act, will the Department support the patron in seeking the dissolution of the board on that apparently very serious ground?

I refer again to the website of the Department of Education. It states:

The board of management manages the school on behalf of the patron and is accountable to the patron and the Minister. The board must uphold the characteristic spirit (ethos) of the school and is accountable to the patron for so doing.

We are coming back to the characteristic spirit of the school and the ethos the board has to maintain. If it is not doing so, it is accountable to the patron and the Minister.

I would appreciate the Minister of State responding on that point.

I think I am just going to be repeating statements I have made to the Senator already.

On the specific question I asked-----

On the specific question in respect of the board, I have already responded to the Senator. I have------

I asked the Minister of State about the dissolution-----

I have already answered that. I stated earlier to the Senator that I am not proposing that a patron should have to dissolve a board only in circumstances where it does not comply with the section 37A order. Other than that, there is no need to do it. I also reiterate that co-operation, by its very nature, is not 100% binding. We are adding new functions to comply. It is important to note the opportunity in the Bill not just to streamline section 37A but also to make the existing legal provisions more child-centred. That is the real focus of these new functions. I do not think I can put it any further than what I have already said. I have stated that the two-step approach is reflected in the Bill. Sections 3 and 5 provide for a school patron and board to comply with any direction under section 37A as a separate and distinct function from their new obligation to co-operate with the NCSE to open new special classes generally.

It happens anyway that schools will co-operate. The majority of the 2,500 special classes the Senator mentioned earlier are through co-operation with the NCSE. I would not anticipate that many schools would not collaborate to the best of their ability, particularly with the spotlight that special education is under, when they are approached by the NCSE to open a special class. If they need the support there are supports in place from the Department and NCSE, the SNAs and everything that is needed. The Senator mentioned the €6,500 grant. Other grants are available for them to open special classes. They will be assisted in any way possible.

However, there is a minority of schools that do not comply where there are not legitimate reasons for them not to do so. In those particular circumstances, I will issue a section 37A notice and compel them to comply. I hope I do not have to do that. It is only the third time we have had to use the section 37A process since it was introduced in the first instance. We are simply adding these functions in to copper-fasten what is already there. I thank the patrons that have co-operated. Many patrons, boards of management and schools do co-operate but there are the few that do not. As most Senators will know, we meet families on a daily basis who just cannot understand why they cannot get a place for their child. We have no option but to bring this legislation. It is their right. I know the Senator agrees with that. We have to do everything in our power to provide that education to them. That is why we are bringing this legislation forward.

As the Minister of State rightly says, it is the few. Unfortunately it is the few we have to legislate for. My problem is that the Minister of State is putting the patron under an obligation to ensure something they do not have the power to ensure without dissolving the board. This is prior to the section 37A process. Leaving section 37A aside, if a board of management is not complying with the patron's attempt to ensure co-operation and the patron moves against the board, will the Minister of State support that move? The Minister has to approve of the dissolution of a board. It is a serious matter to put a legal obligation on a patron in this situation. It is all the more serious where they do not have any sanction other than to seek the dissolution of a board of management with the support of the Minister. What the Minister of State is saying to me, in effect, is that the problem will be solved because she will, with a heavy heart, invoke section 37A. She has not solved the patron's problem. She has created a legal obligation on a patron to do something and it has been unable to do it, only because its board of management has refused to co-operate with. The Minister of State is putting the patron in a situation where it will have broken the law by not managing to ensure co-operation. It will have broken the law because it has a board that refuses to co-operate. The thing is covered in stigma, from everything that has been said in this House this evening. I am asking the Minister of State if she would then support the patron if it sought to remove the board as a result of that failure to co-operate. That failure to co-operate is prior to the section 37A process.

I do not understand why it is not provided that the patron and the boards "shall work" to co-operate with the NCSE to provide. Then when they do not, we go for section 37A and it is entirely blameworthy but nobody has broken the law. This is a situation where the patron has broken the law and has not had the power to ensure it does not break the law. Why is it a problem to link this in with section 37A? I think the aim of the Minister of State is to get the patron into the process and I agree with that. I do not know of a patron that does not want special classes. I do not know of a patron that is not active in this area. What is the mischief of taking on my amendment so as to link it with section 37A?

Once again, I am happy to answer it but this is the third time I am answering the Senator's specific question around the dissolution of a board. I will say again to him that I am not proposing that a board be dissolved, only in circumstances that it does not comply with a section 37A direction. That is my view.

That is not the question I asked.

That is the question and that is my response to it. What else did the Senator ask me?

What is the problem with my amendment?

I have given the Senator my reasons we are not linking it in. That is to allow the co-operation. Compelling schools and forcing them to a certain extent to open special classes is not something that anybody likes doing or wants to do. We want to have a culture and ethos in a school from the outset whereby it will embrace inclusivity and believe in integration of children with special educational needs. That is why we allow schools the opportunity to co-operate and collaborate but if they do not, then we will issue the section 37A notice. That is why we are not doing it. It is something we are reluctant to use but will use where we have no other option. That is why I find myself in this Chamber bringing this legislation to the House. I simply was not getting the co-operation from all schools to open special classes where they are absolutely badly needed. That is the reality of it. That is my response to the Senator's questions.

The Minister of State has given the answer. I think we need to put the question.

I appreciate the Minister of State's efforts but she has not responded to my specific question. She says she is not seeking for the patron to seek to the dissolution of the board where they fail to comply. That is not my question. Given that she is putting a legal obligation on the patron to ensure something which the board may not comply with and which may, in turn, trigger a section 37A process, would the Department stand in the way of a patron dissolving the board? It is a very different question from the one the Minister of State answered.

Second, the Minister of State says she will not take on my amendment in respect of section 37A because she wants to create something prior. I see the argument, actually. However, I think the wording could have been found if this had not been so rushed to express this in a way that would actuate and bring about the Minister of State's aim, namely, to draw the patrons into the process of putting pressure on the boards of management. I think that is what the Minister of State wants here. She wants to create some kind of moral obligation that people would work with the process before ever section 37A would be invoked. However, the way to do that is not to create a legal obligation on somebody to do something when they have no power to do it and no sanction, or at least no sanction the Minister of State will endorse here this evening, when they do not.

To conclude, from my own perspective there are very few scenarios where a patron has ever considered dissolving a board under the existing obligations. It is not envisaged that patrons would suddenly look to dissolve boards other than where they fail to comply with section 37A.

Amendment put and declared lost.
Question, “That section 7 stand part of the Bill”, put and declared carried.
Sections 8 to 10, inclusive, agreed to.
Amendments Nos. 2 and 3 not moved.
Section 11 agreed to.
NEW SECTION

I move amendment No. 4:

In page 10, between lines 15 and 16, to insert the following:

“Amendment of section 20 of Act of 2004

12. The Education for Persons with Special Educational Needs Act 2004 is amended in section 20(1) by the substitution of the following paragraphs for paragraph (b):

“(b) in consultation with the Department, schools, the HSE, Túsla and such other persons as the Council considers appropriate to plan and co-ordinate the provision of education and support services to children with special educational needs and to ensure that such planning and co-ordination is made transparent, and to ensure that such planning and co-ordination is made transparent to the public generally by the annual publication of a report detailing—

(i) relevant statistics and forecasting in relation to demand for school places for children with special educational needs,

(ii) the availability of places in a special class (within the meaning of section 60 of the Education Act 1998) in each school for students with special educational needs,

(iii) the number of students with special educational needs who travel outside of their school planning area in order to attend school, and

(iv) publish a projection and analysis of the number of places in Special Classes and Special Schools that can be reasonably expected to be required in each school planning area, in the subsequent September, and in September two years from that;

(ba) the report referred to in paragraph (b) shall be developed using all data and information available to it, including but not limited to:

(i) children with special educational needs in early years;

(ii) children with special educational needs in Secondary school;

(iii) data from the HSE and Túsla including diagnosis and assessment of needs and other relevant data;

(iv) population level projections;

(v) CSO data; and

(vi) all other sources the Council sees fit.”.”.

We want the NCSE to use all available data, such as CSO data, population projections, HSE and Tusla data, data on children with special educational needs and early years education, to produce an annual report that would be available to the public in order that we are not here in June, July or August each and every year having this conversation but, rather, that we wrap up the conversation by Christmas. That is what amendment No. 4 seeks to do, from Sinn Féin's point of view.

I thank Senator Warfield for tabling this amendment. As the House will be aware, it relates to the core functions of the NCSE and its staff. As I mentioned to the Senator earlier, when speaking to another amendment he had tabled, perhaps the current review of the EPSEN Act is the appropriate forum in which to look at what the Senator suggests. I stress to him, though, that I am not opposed at all to the idea of the NCSE preparing an annual report on the forward-planning of special classes and special school places. I do not disagree with that at all. It would be of great value to me, as Minister of State with responsibility for special education, and to the Department. The Senator's amendment, however, is quite detailed. Significant planning would be involved to review the full detail of this. There are also resource implications in respect of staffing and IT and as to whether any data-sharing issues would need to be addressed. It is not possible to consider all these issues at this time, but the Senator makes a valid proposal that is certainly not without merit. As I said, it is a good idea. At least with such a provision we could see where we are, as he said, and would not be scrambling, year in, year out, to get places. I cannot accept the amendment but I think we can look at it in the context of the broader review of the EPSEN Act.

I echo what has been said. The Minister of State has acknowledged that this is a really important set of suggestions. During the year I spent on the Joint Committee on Disability Matters, this came through again and again. If there are 40 children in an area who need supports at primary school, we should know that, X number of years ahead, we will have the same number of children needing supports going into second level. Yet we see that families often have to restart the whole process of children's needs being identified and recognised. We have often said that the transition points, whether from primary to secondary level or from secondary to third level, are very burdensome on families and individuals. It does not need to be so because we can plan for these things and the information is there. It is good that the Minister of State acknowledges this as a good idea. If it cannot be accepted within this Bill, I know that it is something that Senator Warfield and colleagues on the Joint Committee on Disability Matters have highlighted. It needs to be planned. Senator Warfield did not move amendment No. 3, which relates to the exchange of data, but I imagine that mechanisms could be put in place in respect of appropriate forward-planning and appropriate regulatory measures for the sharing of those data in order that there can be better planning and that we do not leave it to families to restart the process at a new educational level.

I concur with the sentiments expressed by Senator Higgins. I am a member of the Joint Committee on Disability Matters. I consider that much of this is more within the province of the Minister of State, Deputy Rabbitte. I raised this with the HSE when HSE representatives were before the Joint Committee on Disability Matters when we had a joint sitting with the Joint Committee on Children, Equality, Disability, Integration and Youth. It was stated at that meeting that the failure of metrics, assessments of need and staffing around the community disability network teams leads directly to the inability to plan for education at local level. It impedes the Minister of State's very good work. I hasten to add that this is no fault of the Minister of State, Deputy Rabbitte, and not for want of trying on her part. There is a need to have quality metrics as to what the anticipated level of need is in order that we can anticipate whether we need special classes or whether we need full special schools.

The NCSE has the resources and scope to gather this information. It has some of the information already. Working with the HSE, the CSO, Tusla, schools and the early years sector, I think it should be possible to make an accurate prediction and to have a breadth of information available to parents. I will not divide the House on the amendment. The Minister acknowledges that it is a good idea. We should get the Bill over the line. I invite the Government to bring forward such a provision in its own legislation if it will not accept Sinn Féin's amendment.

Amendment, by leave, withdrawn.
Amendment No. 5 not moved.
Section 12 agreed to.
Preamble agreed to.
Title agreed to.
Bill reported without amendment.

When is it proposed to take Report Stage?

Is that agreed? Agreed.

Bill received for final consideration.

When is it proposed to take Fifth Stage?

Is that agreed? Agreed.

Question, "That the Bill do now pass", put and agreed to.
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