Education for Persons with Disabilities Bill 2003: Committee Stage (Resumed).

I welcome the Minister and his officials. I know the Minister might be available later but there is a view that 7.30 p.m. might be a reasonable finishing time. Is that agreed? Agreed. The list of amendments has been circulated and we will resume consideration of the Bill on amendment No. 192.

SECTION 8.

Debate resumed on amendment No. 192:
In page 12, subsection (2), lines 19 to 23, to delete paragraph (b) and substitute the following:
"(b) a statement of the child’s or student’s development and the way that development relates to his or her educational progress;”.
—(Deputy Enright)

I again welcome the Minister; we will be as co-operative as we can to make as much progress as we can on this.

I should have said that as amendments Nos. 193 and 194 are alternatives to amendment No. 192, amendments Nos. 192 to 194, inclusive, may be discussed together by agreement.

This amendment again raises the term "educational disability," which the Minister has included here. Section 8(2)(b) is structured to focus on the child’s disability instead of the child’s ability. It also focuses more on what the child cannot do. It seems to imply that the fact that a child may not be making progress is the child’s fault. This theme, that the child is somehow at fault, seems to underlie and underpin the entire Bill. We are trying in this amendment to change that around.

It is a subtle change where the wording is concerned. Rather than outlining the child's educational disability, it would be more professional for the plan to include a statement of the child or student's development and the way that development relates to his or her educational progress. That is a far more positive way of putting matters than focusing on educational disability or on the disability as such.

The thinking emerging in this whole area is that disability is socially constructed in many cases. Society disables people, not in terms of their impairments but by erecting barriers. It is those barriers which actually disable people. If we can remove those barriers and provide supports in a positive sense we may actually find that people we now term disabled would not actually be disabled at all. They would be enabled. The thinking behind this amendment is to change to a focus on the positive and to look at the development of the child in an ongoing sense. I hope the Minister will consider what we are saying. As with all amendments that we put forward, we recognise there is always room for improvement, but we are trying to make a point here rather than anything else, and hopefully the Minister can take that on board.

My two amendments relate to punctuation. They do not really have anything to with the point Deputy Stanton is making or with the detail of this section. They are just what we consider to be necessary punctuation changes and I do not need to elaborate on them. I generally support the principle Deputy Stanton is arguing, that we need to be as positive as possible in terms of how we express what is happening in this Bill. It is particularly important that the plans for a child be expressed as positively as possible in terms of the child's progress rather than the child's disability.

We have spoken in general on previous sections about being proactive and trying to change the whole emphasis, but I am not in favour of deleting paragraph (b) because it is quite important and, indeed, fundamental to the Bill. If we do not clearly identify and lay down what the actual disability is, the programmes that follow to deal with the education of the child will be missing fundamental details. In my own case, some of the smaller points seem to get missed very easily. It is very easy to look at a child and determine that they have X, Y and Z, but some of the other associated disabilities, like motor ability and so on must be clearly identified in the big picture. These are just as important because a child will not be able to write if suffering from them. If they are not clearly identified as part of that disability, the necessary programmes and structures to deal with such disability are not identified.

I agree with Deputy Stanton about the development of the child and being proactive in the manner in which the problem is perceived, but a point comes where we must be clear, specific and detailed as to what are the disabilities. Otherwise, the programmes will not necessarily address all the issues. They may address some of the more obvious ones, but I was surprised to find that some of the particular programmes developed were to deal with matters that might have been regarded as minor. This is why I would not like to see paragraph (b) removed. It is fundamentally important that the actual disabilities are identified. I agree fully with Deputy Stanton that the Bill needs to be as proactive as possible but this section relates to the content of the education plan, and I would find it very hard to say how that education plan can be put together in a meaningful way without looking at what is the specific disability. This section is crucially important.

I agree strongly with Deputy Curran. Speaking from personal experience, he has put it much more eloquently than I could. I accept the sincerity of what Deputies Stanton and Enright are trying to do but we just cannot write out of this Bill the fact that we are trying to deal with the education of persons with disabilities. In order to cater for that we must at some stage, and at some places in the Bill, talk about their disabilities. We cannot ignore this.

One of the particular points I remember when I got the initial draft of this Bill was asking for the inclusion of subsection 2(a) to try to convey what Deputies Stanton and Enright are trying to put into paragraph (b). We are talking about the nature and degree of the child’s ability, skills and talents and are looking at the child positively. Some people with a disability in one area may have huge talents in another, and that has to be taken into account.

Paragraph (b) is a very important component of what will constitute the education plan. It sets down a clear requirement that the nature and degree of the child’s disability and, most important, how it affects his or her educational development, must be stated in the education plan. I know the Deputies’ amendment is not taking issue with that particular point but the section is very clear in its current form and I do not consider the amendment necessary. However, there is a word in the Deputies’ amendment that we might incorporate on Report Stage. Instead of using the word “progress” we might use the word “development”. It might convey our meaning a little more clearly.

Amendments Nos. 193 and 194 are technical drafting amendments and we will take those up with the Office of the Parliamentary Counsel and come back to it on Report Stage if the changes are necessary.

With respect, the Minister is missing my point. If I can give an example, last Monday I met the parents of an autistic child. I think the child is four or five years old at this stage, and for a period of time had been in an inappropriate setting in which he was not making any progress. According to the Minister's thinking, the child has an educational disability called autism. The way I approach it, the child was educationally disabled due to being in an inappropriate setting. The parents subsequently moved the child to the CABAS school in Cork. The Minister will be familiar with this school, even though he may not yet have visited it. The parents told me the child made phenomenal progress there and they cannot believe the difference. The disability, as the Minister defines it, has not changed but the child is no longer disabled because the barriers, which we raised by placing the child in an inappropriate setting, were removed. Therefore, the child is no longer educationally disabled. This kind of thinking is crucial; we must identify the existing barriers and see whether we can remove them.

I am glad the Minister is focusing on the word "development" because children develop and change and our job is to put in place the supports to help them to change to reach their potential. We fail to do so by setting in stone this notion of educational disability and not recognising that in many cases the disability is caused by lack of appropriate supports and resources.

Going by the Minister's approach, somebody would carry out an assessment and state that this child is autistic and is educationally disabled as a result. That assessor would not state that this child is disabled due to lack of support and this is the kind of thinking I am trying to convey. It is subtle, but crucial.

I would ask the Minister to re-examine this matter from the angle I outlined. I am sure our colleagues would have many more examples. Looking at development, as the Minister suggested he might, is a far more positive way to proceed. Children are developing all the time. We must ask how a child reached a particular stage, what happened in the past and how he or she can move on as the child grows? It is a developmental process.

The disability is not caused initially by any lack of support. It is inherent in the child. In the Bill we are trying to ensure that once that disability is seen and acknowledged, we put in place appropriate responses for the child, whether they be in a facility such as CABAS or in another type of facility. It is important that we know the nature and degree of the child's educational disability. It is absolutely essential that we know that in order to draw up any kind of education programme and to do the things about which Deputy Stanton spoke. We actually need that knowledge.

Section 8(2)(f) states clearly that “where appropriate, the special education and related support services be provided to the child to enable the child to effectively make the transition from primary school education to post-primary school education,”. All of that must be taken into account.

The aim of the Bill is that every child will get an education appropriate to his or her abilities and we cannot go further than that. I understand the Deputy's point, but on the other hand I really do not think we can put a Bill through the House which does not specify that we are trying to deal with providing education for persons with disabilities. We must be as sensitive as possible but we cannot be so sensitive that we sanitise the Bill completely and throw it open to everybody to avail of the services we are talking about providing here.

I reserve the right to reintroduce the amendment on Report Stage.

Amendment, by leave, withdrawn.
Amendments Nos. 193 and 194 not moved.

I move amendment No. 195:

In page 12, subsection (2)(c), line 24, to delete “except in the case of a pre-school child,”.

This amendment, and the two subsequent ones, relate to how we see a child or student progressing right through the system. I cannot understand why we would put "except in the case of a pre-school child," in this part of the Bill.

I suppose it depends how one wants to define educational performance, but it is just as important that the developmental performance of a child at pre-school, if the child is being considered under the education plan, is assessed in the same way as a child at any other stage along the way and that account is taken of particular circumstances. Autism is just one example of such particular circumstances where the pre-school stage is when the most help can be provided to assist in the improvement of development. After the age of seven or eight much less can be done. Therefore, it is particularly important that this amendment is accepted and that we remove the wording "except in the case of a pre-school child,".

I feel strongly about this amendment. It should be possible for a pre-school child to have an education plan. For certain children it is very important that the intervention occurs as early as possible.

The organisations which deal with pre-schools, such as the Irish Pre-School Playgroups Association or the Montessori Society, specifically try to facilitate children with disabilities and encourage those who run their schools to facilitate children with disabilities and to integrate them with the other children.

Maria Montessori was the first female medical doctor in Italy. When she started her method, she was working with children with disabilities and developed the materials specifically for children with disabilities. In some cases, the children with disabilities actually overtook what might be described as the regular children due to the advantages of working with these materials at the age of two and a half or three. Subsequently, her work was used in the mainstream and the Montessori movement has become a worldwide entity.

I cite this example to illustrate the crucial importance of early intervention for certain, but perhaps not all, children. There would be a sizeable number of the children to which the Bill refers who would benefit considerably from intervention as early as possible. The Minister should look at this again. There is evidence to show that if one can work with a child in an appropriate situation at a very early age, then one can work wonders with the child's educational development in comparison to what one can do on diagnosing and addressing the problem at a later stage.

I want to make it clear to Deputies that this wording is not designed to prevent pre-school children from having an education plan. From what both Deputies have said, it seems to be conveying that particular impression but it is not meant to do so. A pre-school child will be able to have an education plan. It may not be able to be developed on the basis of his or her educational progress because the child will not have been in an education setting up to the time the plan was drawn up; that is what we are trying to convey here.

If it is causing that confusion, I will re-examine section 8(2)(b). I assure the Deputies that the intention is that the child, in pre-school or in school, will be entitled to an education plan. Everybody agrees that in many cases early intervention can substantially help children and can prepare them for school and so on. If the Deputies withdraw the amendment — they can obviously resubmit it on Report Stage — I will have a look to see if we can clarify that and make it a little clearer that it is not intended to keep pre-school children from getting an education plan. That is not the intention.

In considering that, would the Minister also consider the present level of education and developmental performance of the child? I accept what he is saying in that if the child is not in the education system it is difficult to quantify progress, but it might help to use the word "developmental" as well.

It may be possible.

Amendment, by leave, withdrawn.

Amendments Nos. 196 to 198, inclusive, are out of order because they involve a potential charge on Revenue.

Amendments Nos. 196 to 198, inclusive, not moved.

I move amendment No. 199:

In page 12, subsection (2), between lines 29 and 30, to insert the following:

"(f) where appropriate, the special education and related services to be provided to the child to enable the child to effectively make the transition from pre-school education to primary school education;”.

We notice that in subsection 8(f) the Minister has made provision for services to be provided to enable the child to effectively make the transition from primary to post-primary school education. It is just as important, if not more so, where necessary and appropriate for services to be provided also to enable the child to effectively make the transition from pre-school to primary school education. The importance of pre-school education is widely acknowledged in the development in every way of the child at that very early stage. Cognisance should be taken of and supports provided for the move from pre-school to primary school, just as the Minister has rightly proposed to do when moving from primary to post-primary.

The difficulty with the education system in general, and it is not specifically the fault of the Minister, is the transition phases. That is where most people seem to fall through the cracks, which is what this amendment tries to reflect.

On the basis that further amendment may be needed on Report Stage, I am prepared to accept this amendment as it stands. Just so that I am not seen to be in breach of faith by the Opposition on Report Stage, we may need to tweak it for Report Stage but the principle of it is acceptable.

Amendment agreed to.

Amendments Nos. 200 and 201 are out of order as they involve a potential charge on Revenue.

Amendments Nos. 200 and 201 not moved.

I move amendment No. 202:

In page 12, subsection (2)(f), line 33, after “and” to insert “from post-primary school education to further or third level education or to further training, rehabilitation or work as appropriate, and”.

This provides that supports and services be put in place at the other end to enable the transition from post-primary school education to further or third level education or to further training, rehabilitation or work as appropriate. I know we have had issues around age and so on and that the Minister has agreed to look at this. Again, it would not be the case that the child or person would be left on their own at that stage.

There would be a certain amount of co-ordination and co-operation between all the stakeholders to ensure the transition is made smoothly, effectively and properly. Supports would be put in place to enable that to happen. It is a very important time, and we know from experience that parents in particular are very worried about what happens to their children who have special needs or are disabled when they move on from post-primary and such places. That is the basis of the amendment and I would like to hear the Minister's views on it.

This is taken care of in section 14 of the Bill, and I would prefer to keep it there. This section deals with the content of the educational plans but section 14 deals with planning for future education needs and deals specifically with young people coming up to the age of 18. It is more appropriate that we address this at that level. It is catered for but we can have a look at it later.

The difference is that in section 14 the emphasis is not on further training, rehabilitation or work. It seems to focus more on education, which is fine but there are other areas as well. Perhaps the Minister would look at section 14 again with the perspective that there are other areas people move into apart from education.

That should be catered for as well. Section 14 specifically caters for future education needs but the larger disability Bill will deal with some of the other areas we are talking about also. Between section 14 and the disability Bill it is fairly well covered.

Amendment, by leave, withdrawn.

Amendment No. 203 is also out of order.

Amendments Nos. 203 and 204 not moved.

I move amendment No. 205:

In page 12, subsection (3), lines 38 to 40, to delete all words from and including "or" in line 38 down to and including "purpose)" in line 40.

We are talking about the council preparing guidelines and the reference to the category of "special education need", but it also says "or educational disability." I am not sure why it is one or the other. I would have thought that special education need would have covered everything. Why is it necessary to include that extra phrase "or educational disability"? The Minister knows my thoughts on educational disability, that it is the structures which disable people in many cases. I recognise that people have physical and other impairments but the disability itself is caused by the lack of supports. That is something I am trying to get across all the time. I do not see the reason for that either/or phrase, and maybe the Minister would tell us why it is there. Is there a choice there?

We had a long discussion about the language used in the Bill and the definition of educational disability and special education need. In light of what Deputy Stanton had said at an earlier stage, I indicated that I was willing to have a look at the definitions and language as they pertain here. I will have a look at it in this particular context if the Deputy is willing to withdraw the amendment on that basis.

Amendment, by leave, withdrawn.

Amendment No. 206 is out of order.

Amendment No. 206 not moved.

I move amendment No. 207:

In page 12, lines 43 to 45, to delete subsection (4).

This amendment is linked, even though it is not in the grouping, with amendment No. 210 and is intended to ensure that in preparing or amending its guidelines, the council will act in accordance with ministerial or Government policy.

I suppose that is fairly standard in Bills like this, but we hoped the council would have been more independent in its remit. If a Minister of the day who might not be as warm-hearted as the current Minister was in control, we might have a situation where the policy would not be as helpful. The whole idea of deleting that particular amendment was to give the council more independence. Maybe the Minister could tell us the relationship between the Minister of the day and the council. Can the Minister actually dictate terms to the council? What does he see as the relationship between the two? How independent is the council? What kind of policy has the Minister in mind in section 8(4) in the case of children with special educational needs?

The council will have complete independence in the discharge of its functions. The Minister and the Government will set general policy frameworks. This is a standard provision but the reason it is done in this way is that the Minister then must remain responsible to the Dáil for the policies being implemented. The council will be responsible for how it implements those, and obviously answerable to this committee or to a committee of the House as well.

On the policy areas, the current general policy of Government, for instance, is that there is an automatic response to children with special needs. The council then will have to act on the basis of that policy. When it is brought to its attention that a child has special needs, the policy under which the council must operate is that there is an appropriate automatic response to the needs of the child.

If a Minister then decides that there will not be an automatic response to children with special needs such as going back to the policy of the past where it was ignored or whatever, then the Minister would be responsible to the Dáil for that change in policy and would be answerable to the Dáil — he would not get far with introducing that kind of policy.

It is the standard division between the policy making role of somebody who is answerable to the Houses of the Oireachtas and the other role. Once the decision is made that this is the policy, then the council has to discharge its functions without interference from the policy maker who is the Minister. That is the best way I can describe it.

We continuously get into all sorts of trouble for the bodies we set up. When the decisions made by the bodies suit people then the bodies are seen to be great and when they do not the politicians get blamed, but that is life.

I am deputising for Deputy Crowe who is abroad on what might be called international business on a campaign to try to help three Irish people in Colombia, and I wish him well in that regard.

I would have preferred if amendment No. 209 had been grouped with this amendment. It is extremely relevant as amendment No. 210 is seeking to strictly limit the council to the Minister's policy.

I accept to a large degree the accuracy of what the Minister has said. My difficulty is that Ministers, as most of us know, can sometimes go off on a whim. That, depending on the particular whim, might distort the ongoing work of the council and that is why my party would have preferred to see the council having a steadier or more long-term perspective on their powers and control in this respect. It ties in strongly with amendment No. 209 because that amendment speaks of "international best practice".

I will make a brief comment only because I do not think the Minister is for turning on amendment No. 210. I reiterate what I stated in the Dáil a couple of weeks ago about the assessments. If an educational psychologist makes an assessment that a student needs X number of hours during the week and one gets a private assessment from someone, who possibly works in the health board, that the student needs eight hours, that expert knowledge will be whittled down because of policy. I will not use the same words I used previously, but it compromises the professional standing of psychologists. In such a situation, the effect of the insertion of amendment No. 210 is another example of where professional opinion could be compromised by departmental diktat. I ask the Minister to think about this because somewhere down the line, as Deputy Stanton stated, we may have someone slightly less accommodating. If, for example, Deputy McCreevy became Minister for Education and Science, God help anyone in education.

I am not sure I agree with the Minister that policy is debated by the Dáil. Much of the policy in education is put out by circular. It is when we have seen the circulars or when the effects of them are brought to our attention that we then try to debate them but unfortunately the circulars are already out there at that stage.

The special education council will not necessarily be contacted by the Minister by circular. However, when decisions are generally made by Ministers, we increasingly learn about them afterwards. A Minister rarely comes to the Dáil in advance to tell us what he or she will do in a policy area unless he or she must do so by way of legislation. As we are concerned here with legislation, that will not happen.

I am concerned. It will be implied anyway and I suppose we all accept that is the reality of life, but I would prefer if it was not so explicitly stated in the Act. Perhaps the Minister will reconsider that.

I broadly support what has been said by my colleagues. Deputy Crowe's amendment No. 209, which has not been grouped with this amendment but which is obviously related, is important. We need to look at international best practice in this area. We are politicians and whoever is the Minister for Education and Science is not an expert in the area of assessment of children with special needs. It is important that we acknowledge that there are experts in this area, that there is a deal of progress in terms of international best practice and that we need to ensure the council works in accordance with international best practice and brings the best possible policy to the education of children with special needs. The end result that we all want to achieve is that these children will make the best possible progress within the education system.

I agree with what has been said about circulars. I have copies of two circulars which are very narrow and prescriptive in terms of what can be done in an assessment, and that is wrong. We should give the experts, who are mainly educational psychologists, the flexibility to make a professional judgment on what is best for the individual child concerned. That is what individual assessments of need is all about.

I would hope the Minister will look at the broader impact of all this section and the fact that it does seem to be narrowly focused. It is not only about the Minister's current policy, but about the general issue that we are dealing with an area where there is particular expertise out there which is being developed continuously on an international basis. We need to ensure the council keeps up with that.

When I first saw amendment No. 207, I thought the Minister was agreeing with us. Then I looked at amendment No. 210 and I took the other view. If one looks at the subsection in the Bill and the one proposed to be inserted instead, the Minister is putting the council in a tighter straitjacket. The Bill states "The Council, in preparing guidelines under subsection (3), shall have regard to the policy", but now the Minister is saying they, "in preparing or amending guidelines under subsection (3), shall do so in accordance with the policy". They need not only take into account the policy; they must do what they are told. It is hardening the position and strengthening the role of the Minister and whatever policy will be in place. It is removing the independence and discretion of the council to a greater extent than the original subsection, which we thought should have been deleted.

The other change is that, following "in preparing", the Minister is inserting "or amending guidelines", which is fair enough because that is probably just covering a loophole. In one sense they should have regard to the policy, which is fairly standard in most Bills, but the big difference here is that now they "shall do so in accordance with the policy" and they have no choice in the matter. This takes away that little bit of discretion they might have had, and maybe they have to really take into account these circulars that are emanating, as Deputy O'Sullivan said, from the Department. Many of them, as I have said before, are extremely difficult to understand and refer to different subsections. Parents and teachers cannot understand them and we cannot understand them. We have to dig out Acts, other circulars and so forth to try to figure out what the heck they mean. What is proposed here is more of the same. Maybe the Minister should go back to what we had in the original Bill, which was less damaging than what he is proposing now.

We could have a long and very philosophical discussion on all of this, but most of the complaints I hear from Deputies on all sides, Government and otherwise, are that we are taking power from the Dáil and politicians. I am answerable to the House for whatever circulars or policies go out. Deputies have the opportunity of raising these matters in the House in a variety of ways. If I am pursuing a policy that Deputies do not like, it is right that the Government and the Dáil, which holds the Government accountable and answerable, should have the final say on what policies are pursued.

I have heard Deputies from all sides at various stages giving out about this or that body, board, council or whatever and about having absolutely no say over what is happening and decisions that are being made. What we are doing here is ensuring that a Minister is being held accountable by the House for the policies being pursued. If the council is pursuing a particular policy, I do not have the protection of saying that the council is totally independent and decided the policy itself. I have to accept responsibility for the policy, while the council is responsible for its implementation. If somebody says the council is not implementing the policy the way it should, that is its responsibility. I am responsible to some extent but the council is accountable for that and can be called before this committee.

It is extremely important that any body set up by an Act of the Oireachtas is subject to the policy guidelines of the Minister of the day, who can be held accountable before the House. Sometimes Deputies raise matters and circulars or policies are still not changed, but that is the cut and thrust of democracy. At least the issues are highlighted and the arguments are put forward. I put it to the Deputies that this is not designed in any way to curtail the activity of the council, but to try to ensure the council has clear policies. It forces a Minister into having to clearly declare a policy. I freely admit that in many areas, not only education, things happen and decisions are made without a very strong policy base for them, so this forces a Minister to spell out the policy.

If there is no policy the council will be the first to say so. It has already said, before it is even up and running, that it needs clearly defined policies in regard to this, that and the other so it can operate in a particular area. It is extremely important that the policies are there, that the Minister of the day sets those policies, that he is accountable for them and that the council implements them and is clearly seen to be doing so.

One of the roles of the council, as we will see when we come to it, is to advise — this relates to Deputy O'Sullivan's point — the Minister on best international practice in order to inform his policy and decision-making role. That is extremely important role. Another role it has is in the whole area of research, which again would take into account best international practice. What we are basically doing here, which is fairly standard, is ensuring there is clearly defined policy, that the Minister is accountable for that and that the council operates within those policies and does not thwart the decisions of the Oireachtas in the passage of this Bill.

Suppose the council decided that we will only have an education plan once every two years. That would clearly be against the policy that I, as Minister, and this House decided in the Bill. The council has to be held accountable and have a clear policy to carry out. That is all these amendments are aiming to do.

I suppose the Minister could accuse us of trying to have our cake and eat it on this issue. I did say at the time the Bill was published, and previously in committee, that I would be concerned that the special education council would be answerable to the Dáil. I accept the Minister's distinction in terms of policy versus operation, and at present at least, if a parent comes to us as politicians about an issue or service that their child is not getting we will have the mechanism of questioning the Minister as to why that is the case.

However, my fear is that the special education council will be somewhat like the NRA and that when one submits a question one will discover it is not the responsibility of the Minister. I see that happening with the special education council as well, and I did raise concerns about this. The Minister said himself at the launch of this Bill that when the special education council is in place it will be its responsibility and not his to ensure the implementation of the Act and that it will draw up the timetable for delivery. To us, the Minister is the person responsible. The report can come before the Dáil, and all we can do is bring members of the council before the committee. We can listen to them and question them but they can walk out the door and operate in the same way for another year until they come back again. I am concerned that they should be answerable. They should have to follow policy to some extent, but that policy should be in the legislation rather than be changeable.

Unfortunately we cannot put every item of policy into legislation. Deputy Stanton raised the point earlier that there are new impairments or disabilities from which people are suffering but about which we do not yet know. They will only become clear in time. In that respect it would be impossible to try to cover everything in a Bill.

From the point of view of accountability, I am accountable to the House. The basic difference between what pertains at the moment and what will pertain is that the council will make the decisions, and if people do not like the decisions there will be an independent appeals system. That is what we are doing. Rather than putting a question to the Minister as to why a child is not getting a particular service, one will go to an independent appeals body with the knowledge and expertise to make a professional judgment and decision. The Minister has no professional competence to decide whether a child should get the required assistance. The council will then be responsible when it comes before this committee for those kinds of decisions of the appeals board.

If the council reports to the House that many children are not getting individual education plans or that the services being provided are not adequate for them because of the policy of the Minister, then it comes back to me, I still will be responsible. If, however, the problem is found to lie with the professional assessments, that is the decision of the professionals, rather than mine.

Amendment agreed to.

Amendment No. 208 is out of order.

Amendment No. 208 not moved.

We will resume either at noon or at the conclusion of the Order of Business when we will discuss amendment No. 209.

Sitting suspended at 10.30 a.m. and resumed at 12.10 p.m.

We are on amendment No. 209 in the name of Deputy Crowe, to be moved by Deputy Morgan.

I move amendment No. 209.

In page 12, subsection (5), lines 46 and 47, to delete all words from and including "may" in line 46 down to and including "subsection (3)” in line 47 and substitute the following:

"shall ensure that the guidelines for preparation of an education plan are in line with international best practice".

I am sure that no one on either side of this committee will claim that the policies of various Governments over long years towards special educational needs in Ireland have been a model of best practice. In fact, occasionally it has seemed as if Ireland, in its policy towards those with special needs, has been an example of worst practice for other states to avoid. One of the functions of the council, laid out in section 18 of the legislation, is to disseminate to schools and parents information relating to best practice both nationally and internationally.

Perhaps we need to think about that. Parents and educators will get models of best practice from the council. Yet the council is not instructed to implement best practice, either nationally or internationally. What is the point of sending out information on best practice? One might as well be sending out the programme for Government or the agenda from our last Ard-Fheis. What is the point when nowhere is the council empowered to ensure that best practice applies? Regrettably, I have no doubt that the reason for that is that the possible best practice, if implemented by the council, would be too expensive. I am sure the current Minister for Finance would not wish to expend additional funding on implementing best practice. Parents and schools are to be told what is best practice. They will sit and read information on it, and nothing will happen about it. Amendment No. 209 is about ensuring that best practice is implemented.

I support Deputy Morgan. I have already addressed the issue regarding the previous amendments, but it is important the phrase "international best practice" is included in this section. Many other countries are far ahead of us in this area, for example the Americans with Disabilities Act 1990. There is also legislation in Britain and various European countries. It is essential that we try to keep in line with what is happening. It seems the council is the ideal body that should be charged with fulfilling this function and ensuring it is part of its thinking when it comes to drawing up education plans. It speaks for itself, and I strongly support the amendment.

The two amendments that we discussed previously, Nos. 207 and 210, will ensure that, in preparing or amending guidelines for the preparation of education plans, the council will act in accordance with ministerial policy. Under section 18 of the Bill, the council must inform schools and parents on best practice regarding education and children with special educational needs. That is an obligation under section 18, and that covers the point that the Deputy is trying to make through this amendment. The whole thrust of the Bill and the obligations laid on Ministers, the Department, the council and everything else is to ensure the needs of children and young people with educational disabilities are fully met. Best practice is the obvious way to do that. The amendment adds nothing to the Bill, since the requirement is already there. I will therefore not be accepting the amendment.

Perhaps we might briefly return to the two previous amendments. The Minister claimed that best practice would be implemented as a result of their adoption. Neither of the two previous amendments discussed deals with the issue of best practice. Specifically, they deal with acting in accordance with the Minister's policy. It is about the Minister's policy as opposed to best practice. Why would anyone be concerned about inserting specific wording regarding implementing international best practice into a Bill governing such an important and fundamental element of education? It is not in there already, and this amendment would incorporate it. For the life of me, I can see no reason why any Minister for Education and Science would not want to implement it. In fairness to this Minister for Education, I have to say that I can see why a Minister for Finance would not want it in there, namely, because of cost implications. However, if it goes in there now, that clears it off the Minister's desk. It means that he will be doing the right thing and that some other Minister can deal with it thereafter.

Are Deputies suggesting the council or the Minister will not adopt best practice? From the point of view of the present and previous Governments, I accept the criticism that up to 1998 there was little or no "practice", good, bad or indifferent, regarding children with special needs. Since 1998, the automatic response the Government has given has indicated the thrust of what it wants to achieve and what it sees as the necessity of providing the best possible service. I accept we have not always been able to match that with actions. However, at all times the council is in place to advise the Minister on best practice. It is clearly laid out. The council is also in place to ensure schools know about best practice. It is a serious suggestion to make that schools, the Department or the council will do anything other than try to adopt best practice. It is not necessary in the Bill.

Another point is that there are obviously different models of best practice that can apply to different disabilities and so on. I want to avoid a "one size fits all" approach to responding to any disability coming about at any stage. Best international practice will be followed. In my contacts with other countries, while I am the first to admit we are not doing everything perfectly, I have found that quite a few of them are examining aspects of what we are doing and saying it is best practice.

I accept the Bill is an extremely significant move forward regarding Government policy and dealing with this need. It is unfortunate to limit it to general policy and say we cannot have an element of best practice. This is not about "one size fits all" but best practice. The Minister says that best practice will apply. If that is so and the Minister is so confident, why not incorporate it in the Bill? Then we can all live happily ever after.

Amendment put.
The Committee divided: Tá, 5; Níl, 7.

  • Enright, Olwyn.
  • Gogarty, Paul.
  • Morgan, Arthur.
  • O’Sullivan, Jan.
  • Stanton, David.

Níl

  • Dempsey, Noel.
  • Andrews, Barry.
  • Curran, John.
  • Callanan, Joe.
  • Killeen, Tony.
  • McEllistrim, Thomas.
  • Mulcahy, Michael.
Amendment declared lost.

I move amendment No. 210:

In page 12, after line 47, to insert the following subsection:

"(6) The Council, in preparing or amending guidelines undersubsection (3), shall do so in accordance with the policy for the time being of the Minister in relation to the education of children with special educational needs.”.

Amendment agreed to.

Amendments Nos. 211 and 212 were discussed with amendment No. 11, and we have agreed that they will not be moved.

Amendments Nos. 211 and 212 not moved.

Amendments Nos. 213, 232 and 233 are cognate and may be discussed together, by agreement.

I move amendment No. 213:

In page 13, subsection (7), line 5, after "plan" to insert "or programme".

We have discussed these amendments already. The point was made that there was confusion. We spoke about plans drawn up by the council and put forward by the school, the health board and so on, and we wanted to differentiate between them. The Minister has not agreed to that, so there is no point in my wasting time by discussing it any further, unless he has changed his mind, which I doubt.

I have not changed my mind.

Amendment, by leave, withdrawn.

I move amendment No. 214:

In page 13, subsection (7), line 6, to delete "in accordance withsection 12”.

I am pleasantly surprised that the amendment was not ruled out of order. I suppose the reason for that is it does not necessarily have any financial implications. I would have loved to table quite a few amendments with financial implications, like the other members of the committee, but we could not do so. In this case, if one looks at subsection (7), one will see that it says the principal of the school should implement an education plan. For the purpose of preparing and implementing that plan, the school should be provided with the necessary moneys and support services, as the Bill stands, in accordance with section 12. I have enjoyed the luxury of tabling this amendment, and the education plan in itself would not be the most costly factor in the Bill as a whole. Including that gives unnecessary power to the Ministers, particularly the Minister for Finance. If one needs moneys and support services to carry out the proper plan, they should be provided no matter what. We do not want to get into the area of fiscal rectitude whereby people are told we cannot proceed with something for another six months because there are no funds left in the current year. If an education plan needs a certain amount of resources — I presume there will not be an unduly generous amount available — one should not have a stipulation "in accordance withsection 12”, because that strictly limits the allocation of such resources. It says that things should happen subject to resources being available. We will reach that later. It is an unnecessary addendum to subsection (7) and as such should be deleted. It would be more in keeping with the spirit of the Bill to adopt the view that, if there is latitude to delete “in accordance with section 12”, it should go.

I congratulate Deputy Gogarty on having this amendment ruled in order. I am very surprised, since some of my later amendments, particularly those concerning section 12, have been ruled out of order because they would impose a cost on the Exchequer. I fully support Deputy Gogarty. The Minister said the legislation entitled the parents of a child with a disability to an assessment of need and an education plan. We have already determined that they do not have an absolute right to an assessment of need because the council or the principal of the school can decide it is not necessary, though they can appeal against that decision. We have already seen that the right is limited. In this section, it is limited further by the fact that the principal of the school is to implement an education plan "in accordance withsection 12” — in other words, in accordance with various limitations such as the approval of the Minister for Finance and the Minister for Education and Science’s determination. In that sense, this Bill is not rights-based at all, since it is curtailed by resources, particularly in section 12. If the Minister does what Deputy Gogarty suggests and removes “in accordance with section 12”, the schools will have to be provided with the necessary moneys and support services to implement the education plan. That is right and it should be done. My party believes very strongly that the schools should be given the necessary resources to implement the education plan where the child has a disability in accordance with its right under the Constitution to an appropriate education. I hope that, as this amendment has been ruled in order, the Minister will accept it as proposed and ensure there is enough money and support services to implement the plans drawn up for the needs of children. Otherwise, one is not giving them the right to the service they require.

I agree with this amendment. I do not propose to repeat what has been said, except to say that, when this Bill was published, and in the lead-in up to it, the very strong impression given was that it would be rights-based. Later I will argue that section 12 detracts from that. The amendment would be a good start in ensuring the Bill is properly rights-based. If it is "in accordance with section 12" remains, that will not be the case. If we give principals and schools a role in the education plan, they must be resourced to carry it out. We do not want to see a continuation of the current situation where someone waiting for a psychological assessment is told there will be only two for the school that year, meaning that the person will have to wait until the following year. If it is in accordance with section 12, the education plan will be relegated until whatever year the money is available.

Section 12 will be a battleground later in our deliberations and it may have been an oversight that this was included. Section 12(3) contains an obligation that the Minister shall have regard to principles in Article 42 of the Constitution concerned with the common good. The courts have taken that obligation seriously in generally interpreting the Constitution and they have enforced rights in cases when interpreting other articles of the Constitution. I do not hold the same fear or worries about the section and, therefore, I do not support the amendment.

Section 12 requires that, on making policy determinations regarding the resources to be made available to implement the education plan, the Ministers for Education and Science, Health and Children and Finance must have regard to and take account of key principles. Deputy Andrews mentioned one of them. The principles are that, in fulfilling our obligations under Article 42, the State must provide resources in a way that ensures equitable treatment of every child — that right is underpinned and respected in the legislation — and, second, that the objective of educational provision under the legislation is to ensure children with special educational needs have the same opportunities as their peers who do not have such needs. These two key principles underline the Bill and schools must be provided with the necessary resources in a manner that ensures these principles and policies are delivered on. The reference in section 8(7) to section 12 ensures this. That is important.

Section 12 underlines the rights of young people with disabilities to an education that is equal to that received by a child who does not have a disability. More facilities and resources, therefore, must be provided for those children. I am not sure we are all concerned with the same issue when we debate rights-based legislation. This legislation is rights-based and everybody has rights, including children who do not have disabilities. However, the legislation attempts to strike a balance in this regard to make sure the additional resources needed for children with special needs are provided with all the key appeals systems in place.

It would be detrimental to young people with disabilities if the reference to section 12 were deleted. It is unusual in the way it is worded. Every Bill contains a section, which provides that the payment for the implementation of the legislation will be through moneys approved by the Oireachtas, but this legislation goes further by providing that certain factors must be taken into account when the money is drawn down because of the needs of children with disabilities. Removing the reference to section 12 would have the opposite effect to that intended by the Deputies and I will not accept the amendment on that basis.

I am worried that under section 12, the Minister will determine the resources to be made available. Is there a conflict if education plans are prepared in schools and resources are requested but are not provided because the Minister of the day determines the amount requested is not necessary to implement it? The school might request ten hours of resource teaching provision while the Minister may decide it will be allocated five or six hours. That is the worry parents have in this regard.

Requests are made by schools in every constituency but they are told the Minister has decided they will not be met fully. The Minister for Finance and the Government have a responsibility and duty under the Constitution but the interface regarding the provision of resources by the Department is worrying. For example, yesterday I was contacted about a case involving a child who was being provided with a taxi service to attend a special school but it was determined the service was not cost effective, the funding would be cut and the parents would given a sum in lieu. I was asked to make a representation on behalf of the parents and I tried to contact the officials dealing with this but my call was not returned. This is extremely serious and that is why people are worried. Will the Minister give a guarantee that if education professionals decide on a plan for implementation, resources will be provided as determined by them and not the Minister?

Perhaps the inclusion of the sentence was an oversight, although the deletion of the words "in accordance with section 12" still does not create an additional burden on the State if, as the Minister says, the necessary funding will always be provided under section 12. The words are superfluous in that case. Whatever about the arguments that will come up regarding section 12 in terms of resources and the attempt, where possible, to redefine Article 42 of the Constitution, the wording of the legislation should reflect rights-based legislation as much as possible. Section 12(1) refers to resources determined by the Ministers for Education and Science, Health and Children and Finance. That provides for the Minister solely to determine resources for the implementation of education plans. Section 12(3) states "the Minister of the Government concerned shall have regard to and take due account of principles, including duties under Article 42 of the Constitution ... the resources available to the State and allocated by it in a manner consistent with the common good." The definition of "common good" is, therefore, subjective and the principles are not set in stone, as the Government shall only have regard to and take account of them. For example, the common good might be considered to be balancing the tax take to include an allocation to the national pension reserve fund or the special savings scheme. That would take from the overall pot money which might otherwise be available for the proper education of persons with disabilities.

In this context, the proposed deletion of the words "in accordance withsection 12” would place an onus on the Government to provide such moneys and support services as were deemed necessary by the council and those drawing up education plans. Every individual education plan will be different and some will incur higher costs than others. In some cases an education plan will not necessarily be required. However, to include another resource based rider, even before we get to section 12, sends out the wrong message. It would be a positive step if the Minister accepted the amendment to allow for the deletion of the words “in accordance with section 12” in order to perpetuate at least the image of rights based legislation, even if some of his subsequent amendments cannot make the Bill totally rights based because of the resource issue.

A number of points have been made but I have to say the Minister will not be making decisions on individual cases — that will be a matter for the council or local school principals. This will be done on the basis of professional views on the school based plan expressed by teachers, or in other circumstances by the council or health board. They will do so on the basis of professional reports and the policies that have been decided and are in place. In many cases people say the views of professionals are not being accepted but in some that is because the professionals have not done the reports in accordance with the circulars based on the 1992 CIRCA report which was based on much discussion among professionals about the appropriate level of resources for particular disabilities.

As we learn more about disabilities, plans are often altered on the basis of professional advice from the NEPS or others. One cannot have a totally open system whereby everyone's professional opinion will be accepted without referral to the official policy or circular. There must be some basis on which decisions can be made. That is what is happening.

We are not trying to redefine Article 42 of the Constitution. The Bill is designed to spell out clearly what we believe will meet our constitutional obligations to every child under Article 42. The legislation will also involve parents as much as possible in that process, as well as seek to ensure each child is treated as an individual and that facilities and resources are made available to him or her as an individual. That is the purpose of the Bill. However, if somebody decides his or her rights, or those of his or her child, are not being discharged under Article 42 of the Constitution, he or she will still have the option of appealing the decision or taking court action, which I hope will not be necessary. That is the reason we are trying to spell it out and be as straightforward as we possibly can in the legislation.

The determination of the necessary resources is a function in the broader sense, rather than in an individual case, of the Minister. We are spending €350 million on the provision of resource teachers and special needs assistants and another €35 million on transport but if the Minister arbitrarily decided to cut those figures by €50 million, it would be a breach of ministerial duty and actionable. People would be able to take action, not only the basis of this legislation but also on the wider front under Article 42 of the Constitution.

Section 12 goes further than any similar section in any other legislation in placing an obligation on the Minister, the Minister for Health and Children and the Minister for Finance to take into account the policies adopted by the Government, in addition to the rights of an individual to an education under Article 42 of the Constitution. I will take my hat off to anyone who can find another section in any Bill dating back to 1922 that places such an obligation on the relevant Minister. This is a special section of a special Bill which spells out clearly that young people with special needs must be treated differently. We must make a greater effort to ensure they receive equitable treatment in the education system. That is what we are doing. I do not propose to remove the reference to section 12 because it would have a negative impact on the rights of young people.

Amendment put and declared lost.

Amendment No. 215 is out of order as it would involve a charge on the Exchequer.

Amendments Nos. 215 to 217, inclusive, not moved.

Amendments Nos. 218, 222, 223 and 224 are related and may be discussed together.

I move amendment No. 218:

In page 13, subsection (8), line 9, after "the" where it firstly occurs to insert "special educational needs organiser shall consult with the parents of the student and the".

Special educational needs organisers are the experts to whom we will look to draw all the elements of the legislation together in practice in order that what is provided is actually required. My concern is to ensure such organisers will be part of the process by stating this clearly in the Bill. The legislation places major responsibilities and duties on teaching principals, in particular, but there is no point in enacting something unless it can be implemented practically. The legislation cannot be considered adequate if its provisions cannot be implemented in schools for logistical reasons. While school principals must be part of the process, the special educational needs organiser should co-ordinate it, rather than the principal. That is the reason I have tabled the amendment.

Principals are very concerned about the extra workload being placed upon them but on more than one occasion the Minister has rubbished these concerns when I have sought to raise them. School principals, particularly those teaching full-time, already have huge responsibilities and a massive workload. The Minister has still not explained to us how he expects a full-time teaching principal to implement the relevant provisions of the legislation. Even though they are experienced and may in some cases have the time necessary, many principals say they do not have the required qualifications. They need a special educational needs organiser. We will deal with the qualifications and requirements of a special educational needs organiser later. The organiser needs to be a link, especially between two schools. How will principals consult otherwise?

Another issue that arises concerns confidentiality in the case of amendments and changes to a plan, or when a child transfers from one school to another. Will transfer of a child mean that files containing confidential information will have to move from one school to another? Already, there is concern about this issue in connection with transfer of a child from primary to secondary school. Although it is not directly relevant at present, will the Minister examine the matter of primary school teachers' concern about written reports which sometimes appear later in a secondary school. This matter is of even more concern with regard to transfer of the educational plan and, as the Minister insists, the included detailed description of the child's impairment to the secondary school. It is important to involve the special educational needs organiser in this area.

Will the Minister inform us of the position on dual enrolment? I have raised this matter previously. Some children may be in a special school for a while and then transfer to a mainstream school. In many cases this happens on a phased basis and the child attends the mainstream school for part of the day or week. Who takes responsibility in such a case? Two principals, insurance, capitation and roll numbers, etc., are matters which must be taken into account but I see no provision for them in the Bill. Perhaps it is implied in the reference to transfer from one school to another, although that reference indicates a total transfer from one school to another. Will the Minister indicate how he proposes to deal with dual enrolment?

A totally new plan may be required when a child moves from primary to secondary school. The child will move from a situation where he or she had one teacher to one where he or she will study many subjects with different teachers. We need some guidance as to how the plan will be dealt with in this situation.

Although I agree with many of the comments made on the matter of the SENO, I do not agree with this amendment. The section, as it is written, does not preclude the involvement of the SENO in the transfer of a child from one school to another. This legislation provides for a whole team of people to be involved in the preparation of the plan and the transfer of a child.

Deputy Stanton hit the nail on the head when he asked who would have responsibility. No matter what happens within a school, the principal holds ultimate responsibility. We cannot write that responsibility out of the legislation. I appreciate the work involved in the role of the principal, but I do not see this section, as it stands, precluding the SENO. I see the SENO as being actively involved. I cannot see, however, how the principal can be removed because as school structures stand, it is the principal who holds responsibility. I am concerned that this amendment might change that.

To clarify a point, I asked the question about responsibility in the context of dual enrolment — cases where there are two schools and two principals involved. There is concern with regard to which schooling which the child is enrolled. There are also transport issues. The matter has not been dealt with. It arises particularly in cases of children with special needs and I want some clarification on that. I know principals are responsible within their own schools but what is the situation where there is dual enrolment?

I support amendment No. 218. As the section stands, the education plan can be altered, perhaps significantly, without the involvement of parents or the special educational needs organiser. They can only become involved after the fact. Parents should be involved in these decisions especially if there is to be a major alteration in the plan. For example, if the new school does not have access to certain facilities and therapies, are these elements to be cut from the plan completely or should the new school be funded to provide them? Parents see their children every day of the week and are therefore in a position to offer an assessment.

Throughout the legislation the Minister places the burden for its implementation on school principals who, as we know, do not have the administrative resources to deal with it. Deputy Crowe has proposed a number of amendments on the matter of the organiser being given a more hands-on role in the implementation. The point about the workload of principals has been made often. I hope the Minister will accept the points made.

I welcome the Minister's proposed amendment to delete subsection (8)(b). It is unrealistic to expect the principal of the first school to ensure that the second school is capable of implementing the plan. That places far too much of an onus on the principal.

Following the Minister's amendment there are three proposed amendments which will not now be discussed in the context of this section because they were already discussed. Therefore, as the section stands at the moment, parents and the special educational needs organiser are not required to be involved in the consultation process where the plan is being changed when the child moves from one school to another. Subsection (9) states that "parents may request that the principal of the school ... consult with the relevant special education needs organiser". However, there is no obligation, where the plan is being changed when the child is transferring from one school to another, to consult with the parents. That is a fundamental flaw in this section. This flaw would have been addressed in the three amendments which cannot now be discussed. The only avenue is to address the matter under the section. I hope the Minister agrees that this is something which needs to be addressed.

I shall make a few points with regard to what has been said and then address the amendments. I take issue with Deputy Stanton's assertion that I have rubbished principals and the argument regarding their workload. I did no such thing. I would not like it to stand on record that I did so as such matters have a habit of appearing elsewhere, particularly if not denied. I deny it now. Deputies will be aware from previous sections and amendments that some of the changes I have made, particularly with regard to educational plans, reduce considerably the workload on principals as proposed in the original Bill. Amendments Nos. 222 and 223 are a further example of this. We have proposed three or four other amendments to this effect and later amendments will makes similar proposals.

When Deputies and principals examine the Bill as amended following Committee Stage, they will see that I listened very carefully to everything that was said on this matter. I have tried to reduce any unnecessary workload on principals consistent with the role they are supposed to play in schools. It is not my aim to place increased burdens on principals, but principals and teachers rightly can be very sensitive about other people involving themselves in any aspect of school life. Rightly, they like to think education services are best provided by them in accordance with their best professional judgment. They should have maximum flexibility and freedom in that regard. The less interference from people outside the school staff in consultation with parents the better it is for the smooth running of the school. Obviously that must be consistent with the needs of pupils. In the Bill I am trying to strike a balance in terms of the role of the principal to ensure he or she is provided with maximum flexibility to provide education services for all students, regardless of whether they have special needs.

Section 8(8)(b) required the principal of a school which a child is attending to consult the principal of the school to which the child is transferring for the purpose, among other things, of ensuring that school can implement the plan. I accept the arguments which have been made that this requirement places an unfair burden on the principal. In many respects, he or she may not have any way of ensuring the other school can implement the plan. The subsection is sufficient without this provision as it ensures that a school to which a child transfers will know of the child’s needs and that principals will consult about any changes which are required.

My understanding is that any review of an education plan must include consultation with parents. If that needs to be clarified, I will do so elsewhere. It is the thrust of this Bill. While it is not necessary to spell it out in every section, it is an absolute principle of the Bill that consultation with parents is required. In the section which deals with plans and reviews of plans it is obvious that parents are the people who must be consulted.

Principals and the council will not be left on their own in terms of amendments to plans. Guidelines will be provided for everyone. Dual enrolment will be covered by the guidelines. I am not a lawyer, but according to a layman's interpretation, the principal has responsibility in his or her school. As happens locally, transport arrangements etc., will be made in the normal way.

A number of Deputies raised the issue of consultation with special educational needs organisers. It must be abundantly clear that any time a principal feels he or she must consult the special educational needs organiser he or she may do so. An amendment to section 17 later will provide that as a principal considers necessary, he or she may make such consultation. I will not accept amendment No. 218. Parents have a right to require the principal of the new school to consult the special educational needs organiser where the education plan has been amended in addition to the right of the principal to consult if he or she wishes. Amendment No. 218 would require the principal to consult the organiser even if there were no amendment to the plan. We should not impose unnecessary obligations on anybody.

We have dealt with the matter raised in amendment No. 224 previously and my view has not changed. Whether we use the term "education plan" or "education programme", it does not change the substance of what is meant.

I hope I have made it clear to Deputies that we are taking into account what is being said about the workloads of principals. Through the Bill, the amendments before us and those to be introduced later, we will ensure that parents are consulted. As required, the special educational needs organiser will be consulted also.

I thank the Minister for his response. I have two points, the first of which relates to dual enrolment. Perhaps the Minister can consult with his legal advisors and let us know as soon as he can if, when dual enrolment is involved, a child is enrolled in both schools. What implications would it have for parents, children, schools and principals where for the best interests of a child, he or she must attend two schools for part of the week? The Minister is aware that this is an issue which has been raised repeatedly without being clarified. While I accept what the Minister says and agree with him, it is not enough to say which principal is responsible when the child is in one school or the other. My understanding is that a child can only be enrolled in one school at a time. The concern arises in the second school where the child is not officially on the roll book and is not officially a student there. Does that expose the school to insurance andloco parentis issues? That important issue has not yet been clarified.

The other issue which concerns me is that it is only after a plan has been amended that parents can get involved. Through our amendments we wish to provide that parents and the special educational needs organiser will be involved where the child transfers from one school to another. The event in question is very often traumatic for a family. Will the Minister examine the Bill to find a way to ensure that this is the case where a transfer takes place? When a disabled child with special needs transfers even with an unchanged education plan there will be implications. The new school will have to take account of the plan when including the child in its education structures. This is crucially important. I am concerned that the Minister says parents will not have the right to call in the special needs organiser unless a plan is amended. That is to say the right can be invoked after the fact. Parents should have the right to call in the organiser before the transfer takes place in accordance with common sense.

I made that point earlier. There is no obligation. The Minister said he does not need to include the parents in every part of the Bill but I think they should be included in this section. It seems clear when one reads the section that the plan can be amended between the principal of the first school and the principal of the second school, without consultation with the parents. The parents must be consulted if the plan is being amended in the transfer from one school to another and this should be provided for.

It is important that what is stated in every section should be clear and explicit. When the Bill is enacted and in operation, the reality is that sections 8 and 9 will be read in isolation by the special needs organiser, principal or whoever. They cannot be expected to read the Bill in its entirety and know that a previous section states they should consult the parents. The special education needs organiser is the person who can make the process work. It would be more bureaucratic to do it this way. It makes no sense that instead of doing things beforehand such as convening the theme in advance and organising the parents, they will be brought in after the plan is reviewed, when it may be changed again. The proposed amendment would provide for a clearer, simpler and better way to proceed.

I support the amendment and ask the Minister to consider it as a quicker, more efficient and, ultimately, a less time-consuming method.

Section 11 deals with appeals by parents regarding the discharge of duties of schools. Will the Minister clarify whether this is also covered in sections 8 and 9?

Parental involvement has been a constant theme running through the debate on the Bill. I accept that this has been recognised by the Minister on a number of occasions. I agree with earlier speakers that it needs specific recognition at this point and I therefore support this amendment.

Reference has been made to the right of appeal. This right and the ultimate right of appeal to court is to be welcomed. The purpose underlying the Bill is to avoid the necessity of people going to court and in view of this, it would be better to get it right the first time. Hopefully there will be very few parents who will need to appeal and no parents who will need to go to court. That is the way we should look at it.

I will re-examine this but it seems the Deputies are a little confused. Perhaps the clarity of my thinking on this matter is not reflected in the Bill. In a scenario where a student is transferring from one school to another and the two principals consult and decide that no amendment is required to the plan, I do not see the need to bring in the special education needs organiser. If it subsequently transpires that because of the change in circumstances, teachers or whatever else, a parent feels the education plan is not working, the earlier provisions of the Bill apply. They can look for a review of the plan from the principal of the school or the special education needs organiser, or both, or even the council if it goes to that level. If the child is moving from primary to second level school and the principal consider that the education plan is not working there is no need for a consultation. If something arises subsequent to that, the earlier provisions apply. The parents or the school can seek a review of the plans.

In the second scenario, if the two principals decide that the plan may not work because of particular difficulties in the school, the principals do not have a right to decide that they will amend the plan, although they may review the education plan of the individual. The earlier sections of the Bill deal with reviews and they would apply. That is my understanding of the position. It meets precisely what the Deputy is describing. If a plan is being changed, it is regarded as a review and putting forward a change in the plan amounts to a review. I will examine whether that needs to be legally clarified. It may be necessary to insert into the earlier section a reference to this section to make it clear. Either way that is the intention. The parents must be consulted at any stage in the making, amendment or review of the plan and notpost facto. That principle pervades the Bill and it applies here. If there is a legal doubt, I will table an amendment on Report Stage.

Amendment, by leave, withdrawn.
Amendments Nos. 219 and 220 not moved.

I move amendment No. 221:

In page 13, subsection (8)(a), line 13, after “plan” to insert “or the special education needs programme”.

This amendment is similar to what was discussed earlier. The Minister has not changed his mind on it.

Amendment, by leave, withdrawn.

I move amendment No. 222:

In page 13, subsection (8)(a), line 13, after “plan” to insert “and”.

Amendment agreed to.

I move amendment No. 223:

In page 13, subsection (8), lines 14 and 15, to delete paragraph (b).

Amendment agreed to.
Amendments Nos. 224 to 228, inclusive, not moved.

I move amendment No. 229:

In page 13, lines 22 to 26, to delete subsection (9).

Section 9(1) is a cause of much concern and merits debate. The Bill states that the council may designate the school which a child with special education needs is to attend for the time being and the school shall admit the child as a student upon being directed by the council to do so. I ask the Minister to explain why this is being inserted in the Bill. What difficulties is he trying to prevent? Is he suggesting that some schools might not wish to take a certain child and the council may insist they take the child? Is he afraid that some schools might have to deal with many disabled children while other schools might avoid them?

I think the Deputy is speaking on amendment No. 234, rather than on amendment No. 229.

Amendment No. 229 proposes to delete section 8(9).

I am sorry. I have been speaking on the wrong amendment. Amendment No. 229 would be relevant only if an earlier amendment had been accepted. I apologise for the confusion.

Amendment, by leave, withdrawn.
Amendments Nos. 230 to 233, inclusive, not moved.
Question proposed: "That section 8, as amended, stand part of the Bill."

I have made my point already, but I feel strongly about this section. It should be written into it that parents should be consulted if there is a proposal to change the plan. It does not matter whether one refers to amending or reviewing the plan. They should not be consulted after the decision has been made, when they are allowed to appeal, but during the consultation process. This is a matter of partnership. When we speak of parents being consulted, we do not mean consultation of the type involved when people are consulted by a body such as the National Roads Authority. We refer to a partnership consultation in which all sides are equal partners. The parents may be seen as more than equal, in a sense, because they have the ultimate constitutional rights in terms of the education of their children. I am strongly of the view that we have to ensure that the partnership consultation with parents is written into this section before any changes or amendments are made to the plan for the child.

That has been the thrust of much of the debate on this section. Another aspect is the extra workload it imposes on principals. The principals have told us they are concerned about the workload imposed on them by this section, in particular. I am not sure if they said this to the Minister, or if he listened to them. What will special educational needs organisers be doing? Although the organisers are everywhere, it seems that while they float around, the principals are doing all the work. I would like the role of the organisers to be clarified and more responsibility to be given to them. I am sure the Minister knows that full-time teaching principals will find it impossible to do justice to the provisions in the Bill in terms of the onerous and time-consuming responsibilities they will impose. Anybody who has visited a school, as have the Minister and I, is aware of the amount of work done by full-time teaching principals, especially in primary schools.

Those who drafted the Bill are asking principals to adopt certain additional duties, but they do not seem to understand exactly what goes on in schools. They are not familiar with the increased workloads of principals. I ask the Minister to ensure that special educational needs organisers give more support to principals than is envisaged in this Bill. This is necessary if we are to enable the provisions to operate properly.

It is important that I support this case. All Deputies have received articulate and passionate representations from school principals about their onerous workloads. Principals feel that they cannot adequately cope with this additional work burden. I ask the Minister to reconsider giving additional responsibilities to special educational needs organisers, rather than principals. This is the case that has been made by principals and I support it.

Section 8 would not be causing so many problems for principals if the amendments to sections 3 and 7 had been adopted. I do not wish to restate the arguments that have already been made. I did not table many specific amendments to this section, primarily because I hoped the amendments to section 3 and, to a lesser extent, section 7 would be accepted. The Minister is adamant about the role of principals, but like other speakers I ask him to ensure that resources are made available to special educational needs organisers to assist principals where necessary. I refer, for example, to the 75% of principals who are full-time teachers. I appreciate that some full-time principals are in small schools in rural areas, but teaching principals in growing schools may face an excessive workload. Special educational needs organisers or others may be required to give assistance in such cases. I ask the Minister to bridge this anomaly, where possible, when he is deciding on Report Stage amendments. Teaching principals who have an excessive workload should be given as much practical assistance as possible.

I intended to make a second, separate point when I first spoke on this section. I support the remarks which have been made about principals. I would like to speak about the content of education plans, an issue which has been brought to my intention by the Psychological Society of Ireland. I did not have time to propose an amendment in this regard. The only reference to goals in section 8 is in subsection (2)(g), which refers to “the goals which the child is to achieve over a period not exceeding 12 months”. The PSI suggested that the education plan should initially include long-term and short-term goals. Perhaps the Minister will examine this important point before Report Stage. It is important to set long-term goals over the educational life of the child. Although the goals would not be amended, the means of achieving them would be open to reconsideration every 12 months. The PSI has suggested that an overall long-term goal should be set down in the plan for each child.

When the various delegations attended a meeting of the Joint Committee on Education and Science last year, I noted that the TUI supported section 9. The INTO has not suggested any amendments to the section. The concern for the principals is real and needs to be addressed in terms of guidelines and directives from the Department. The impression I got from the representations we received was that the principals were quite happy. I am certain that they did not express dissatisfaction through their unions at that time.

Given that I have already declared my interest, can I make two points to the Minister? I agree with him about the ultimate responsibility of the principal, which should not be diluted. The members of the committee have made a reasonable point, however, about the additional administrative burden. I do not think much can be done positively with the legislation, but certain things can be done administratively which would help principals enormously in these instances.

One such measure is to provide for a certain loading for pupils with special needs when determining pupil-teacher ratios. I am aware of a case of a full-time teaching principal who has 34 children, including three special needs students, in his classroom, over more than one class. It is sometimes more convenient in rural schools to leave groups together than to break an additional class or several classes. If there was a loading for pupil-teacher ratio considerations in these instances, an additional teacher would have to be provided, in some cases at least. There would be much less of a teaching burden in such circumstances. There would also be much better provision, not only for children with special needs but also for everybody in the school.

Almost all members of the committee have made the point that a great deal of the work of principals will be administrative as a result of this legislation. While there should be any change in the ultimate responsibility of the principal, they should be given additional administrative support. It is clear that principals, particularly full-time teaching principals, will potentially face considerable extra work. I ask the Minister to comment on this section.

I acknowledge the point made by Deputy O'Sullivan about consultation with parents, in a spirit of partnership. That is our intention. As I have indicated, if it is necessary to add this to the section or strengthen the earlier section about reviews or changes to the plans I will consider that before Report Stage. In this section we are seeking to reduce the workload of principals by removing the obligation for them to ensure that the school the child attends is suitable. Among the representations we received following publication of the Bill, this was one of the major problems identified by principals. We have listened to their concerns. While I have acknowledged that there will be an increase in the workload of principals with individual education plans, I have indicated that it is possible for the principal to ensure the workload is spread to assistant and deputy principals and others with posts of responsibility.

The Chairman referred to loading or changing pupil-teacher ratios to allow for the fact that there are children with special needs in a school. At present, approximately 10% of children have special educational needs of varying degrees while approximately 3% have a severe need. We are considering a weighted model to deal with matters that up to now were dealt with through resource and learning support teachers. A principal will know he has a certain amount of resources at any stage of the year. Where a difficulty arises — for example, a person with a severe behavioural problem or educational disability — it will be catered for by direct application. This will go some way towards dealing with the problem.

One of the problems with administrative support in primary schools is the fact that we have more primary schools per head of population than any other country in the western world. That causes difficulties. We do not have the financial resources to appoint secretaries, managers or administrative officers to every primary school in the country. It would not be a productive use of educational resources. However, I have indicated — although the offer has not yet been taken up — that I would be interested in considering a model of administrative support under which schools would cluster together. This would ensure a reasonable level of administrative support for a cluster of schools. It is similar to the system we use for resource teachers. Schools come together for a variety of reasons and while there are many possible advantages and disadvantages with this approach, there is no reason they cannot come together for administrative purposes, even where problems could arise with parish boundaries and local rivalries. Given that schools have come together in the past so that remedial and resource teachers could be shared, it should be possible to arrange it so that administration may be shared. This would allow us to be more generous in the allocation of resources.

Deputy Stanton — or perhaps Deputy Morgan — asked what special needs organisers would be doing in view of the perception that they will do nothing while principals will do everything. There will only be 80 special needs organisers in the country initially, while there are 3,100 principals. There are 10,000 children with varying degrees of special needs in the system. The 80 SNOs will have the responsibility of organising and co-ordinating the provision of special education services in the area for which they are responsible in accordance with the policies drawn up by the council. They will have the responsibility of communicating directly with parents, children, education and training providers and other service providers and dealing with the development, entitlements and delivery of educational services to children with disabilities.

The SNOs will have the job of co-ordinating the assessment process where appropriate; negotiating solutions in order to ensure that individual education plans are in place for children with disabilities in accordance with the policies of the council; ensuring that the individual education plan for special needs children and students in his or her area of responsibility are monitored, reviewed and a mended where appropriate; maintaining and ensuring the availability of appropriate records and assessment reports for all those children; planning, in consultation with education training providers, for the inclusion of integrated settings in mainstream education training, special classes or other facilities for children with disabilities; engaging in appropriate advance planning and consultation with parents and children and local education providers with a view to meeting the needs of such children in his or her area; attending and giving evidence at appeals or courts as required; advising the council on the delivery of special education services to ensure these are in accordance with the policies and operational plans of the council; advising the council on the use of resources allocated for special educational needs and capacity in their areas; ensuring that the optimal use is made of these and that a continuum of special education provision is available as required for each type of disability; advising parents and education training providers on best practice in the education of children with disabilities; providing reports and information to the council; and undertaking other appropriate duties as assigned by the council from time to time. They will not be twiddling their thumbs.

I ask the Minister to investigate the issue of long-term goals.

The Deputy has made a valid point. Section 8(2)(g) is an appropriate place for that. We have focused on ensuring that the plans are not static, but we will insert something such as “longer term goals, as appropriate” on Report Stage.

When the Minister spoke about clustering for administrative purposes, was he referring to the possibility of one principal covering a number of schools or additional administrative staff?

I was referring to the latter. This would cover much of the paperwork involved.

Would there still be a principal in each school?

Mr. David Ruddy, who came before the committee last year, said that 74% of his colleagues were teaching principals.

That is because so many schools in this country have so few teachers.

How will principals do all this work?

Part of what they are being asked to do is what they do at the moment. I accept that the legislation will impose certain extra duties. Principals are responsible for education within their schools, more than half of which have fewer than four teachers. I am not minimising the work involved. We are putting increasing burdens on principals, but they receive an allowance. Their unions will not be slow about trying to negotiate, as is their right.

It is not just a financial issue or a question of whether a principal is compensated; the reality is that when the principal is doing this other work, he or she will not be in the classroom teaching children. Therefore, the children concerned will not be taught by a qualified teacher.

With all due respect to the Deputy, principals are supposed to do this work outside school hours and get days off in recompense. They are also allowed to use substitute teachers for a certain number of days to take account of their administrative burden. Their union is very good in negotiating to secure recompense. I will admit that they do an excellent job. However, our major concern should not be their workload but to get this legislation right for children. Principals are capable of fighting their own corner on what they should receive in recompense.

What will they get in recompense?

Is the Minister making an offer?

I am not. They will now get their benchmarking award after Tuesday night's agreement. There are too many principals on this committee, Chairman.

Question put and agreed to.
SECTION 9.

I move amendment No. 234:

In page 13, subsection (1), line 35, after "may" to insert ", with the consent of the parents of the child concerned,".

This amendment seeks to insert the words "with the consent of the parents of the child concerned" to be applied where a school is being designated for a child. It is being proposed for constitutional reasons because under the Constitution the selection of school for a child to attend is primarily a matter for his or her parents. One cannot force parents to send their child to a particular school without their consent.

I asked about this section when dealing with the designation of schools and the Minister clarified the matter. However, is he concerned that certain schools will have many students with special needs while others will avoid such responsibility? What will happen if a school is designated but does not want to be? We need to know more about the criteria the special educational needs council will use in designating schools. Section 9 states "the school shall admit the child as a student upon being directed by the council to do so". Does the Minister have any experience of schools refusing to take children with special needs?

I do not believe Deputy O'Sullivan's amendment is necessary. The State is constitutionally prohibited from sending children to particular schools against their parents' wishes. I will have this part of the Bill further examined to ensure it is correct. However, I understand parents have constitutional protection. This section is not directed at them but at schools which seek to avoid the admission of children with educational disabilities.

To answer Deputy Stanton, there are schools which do not want to admit children with special needs or disabilities. In some cases, refusal is made under the guise of lack of resources simply to cover the fact that they do not want children with special needs. Thankfully, it is only a small number of schools which are involved in such ruses.

I have had personal experience of this. I dealt with the case of a young girl who was not admitted to a school because she had special needs. To resolve the issue she was advised by the Department to use section 29 of the Education Act. This worked; the school did not refuse her admission. We want to avoid such incidents. That is the purpose of this section.

Implicit in all of this is that children will not be forced to attend certain schools but schools will have to accept responsibility. The aim is to avoid a situation where three perfectly good schools in a town decide they are not admitting children with special needs forcing them to attend school in a nearby town.

I will not speak on any of the remaining amendments, most of which from my colleagues I support. On balance, I oppose this section. The explanatory memorandum states it aims to stop schools from blocking admission to children with educational disabilities if they wish to attend. That it is a noble aim which I support in principle. However, there are a number of other factors involved such as the definition of the overall needs of the child and how they can best be met. There is also the capacity of a school to accommodate a child with special needs.

Some bodies such as the deaf and blind representative groups are adamant that they should have their own schools, which I support. However, others such as Down Syndrome Ireland have concerns that this section as written may be twisted. Rather than being inclusive and integrating the child within the community, the Department may attempt to streamline the resources available and segregate the child from his or her family, friends and environment. While the section, as worded, will stop schools from saying "No", it also gives the Department power to claim resources are not available and that there are certain schools which cater for special needs. In turn, it may become an issue of resources rather than needs.

There are many children with educational disabilities who could be educated in their own community if resources were provided. In this context, in the section, there is a judgment call on whether resources will be provided by the Department or whether the council will designate a school as suited to the overall needs of a child given the resources made available by the Department. The section must be rewritten to specifically state that schools which seek to avoid the admission of children with educational disabilities will be made to reconsider their decision. This provision should be specified in absolute terms as parents who believe their children would be better educated in local schools could by departmental dictate be forced to go elsewhere. That is the reason the section should be reworded rather than leaving it open-ended.

I am not addressing the amendment but there is one minor issue in this section which needs to be dealt with. Subsection (1) states: "The Council may designate the school which a child with special educational needs...". I will not go against an argument I made because I agree with the use of the term "special educational needs" but to the best of my knowledge it is not defined in the Bill. The Minister has insisted on using the term "educational disability" and I wonder whether there is a conflict in that regard. Perhaps the Minister will examine this at some stage.

Deputy Gogarty mentioned on a number of occasions that the Department could, would have power to or might use this section to segregate and ensure children did not go to the school——

What is the definition of "resources"?

If the Deputy reads the section in full, he will note that the council will designate the school.

Is it covered by departmental policy?

The policy as outlined is clear. While mainstreaming is the preferred option, it will depend on the needs of the child. That is the policy under which the council will be operating. It is laid down in law and cannot be changed by me or any of my successors. The council will decide on designation. If it decides that a school should be designated, as stated in subsection (2), in making that designation it must have regard to the needs of the child and the wishes of his or her parents. If they do not want such a designation, it will not happen.

The council shall also have regard to the capacity of the school to accommodate the child and meet his or her needs. Once the capacity and necessary resources are made available to provide for such designation, the school must adhere. If the Minister of the day was not in a position to make the necessary resources available, the school would be in a position to say it was not accepting the designation.

It is not the case that the council will be in a position to say willy-nilly that a child will go to a particular local school only for some Minister to whisper into the ear of a member of the council, as if it would happen, that it should send every child to that school, that it should not provide for any other school. Any parent who decides that a school does not have the capacity to meet the needs of his or her child will be able to say he or she is not sending his or her child to that school. The Minister would then be under an obligation to provide the necessary resources.

In the case of a child with a physical handicap, ramps will have to be provided, or in the case of children with other disabilities, other facilities, be it a special needs assistant or resource teacher, will have to be provided. The Minister will have to make such facilities available because the school cannot be hung out to dry having been designated in not being able to facilitate the needs of such children.

Subsection (3) provides that if a school considers it has been unfairly treated, it can appeal such designation. Adequate protection is given to schools and parents because such designation cannot be made against their wishes. In the small number of cases where this might apply it is important that such provision remains in the Bill.

Does any other member wish to speak on this section or the amendment?

I have tabled amendments to the section.

I will come to them. I refer to the principle the Minister has explained.

The provisions need to be included. The reference to parents' constitutional right needs to be included because the council could designate a school to which the parents would not want to send their child. I do not understand the reason they should have to take a constitutional challenge against such a decision. It would be preferable to include this provision to ensure the council would be aware that it could not designate a school against parents' wishes.

I will have to reconsider the matter but understand it is covered in subsection (2) which states that in making a designation the council shall have regard to the needs of the child concerned, the wishes of the child's parents and the capacity of the school.

In that case, I will withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 235 and 236 have been ruled out of order.

Amendments Nos. 235 and 236 not moved.

I move amendment No. 237:

In page 13, subsection (2), line 40, after "to" to insert "geographical convenience,".

This amendment addresses to some extent Deputy Gogarty's point. It is partly the reason I did not speak about the section. I propose that the words "geographical convenience" be inserted as one of the issues that should be taken into account when the council is designating a school. It should be written into the Bill that it is desirable that a child should attend the local school. That is the central aspect in what we are trying to achieve in this section in giving the council power to designate schools and putting obstacles in the way of those schools which might not want to bother with children with special needs due to the extra work involved and so on. Inserting a proposal that geographical convenience would be one of the considerations would strengthen the council's hand in ensuring that the child can attend the local school where possible.

This is an obvious and, I would have thought, positive amendment which I hope the Minister will accept. He may claim that as the council must take into account the needs of the child, transport and geography will have to be taken into account but this is not explicit in the Bill. Geographic convenience, while understandable, has often far more to do with the availability of public transport than anything else. In some areas, particularly rural areas, public and school transport systems are inadequate to meet the needs of the children concerned. Therefore, the issue of school access must be taken into account when the council is making a decision to designate a school. There is a possibility that this issue may be dealt with strongly in policy terms. I would like to hear how the Minister proposes to deal with what has the potential to become a very serious issue.

I invite Deputies to consider what it is they are talking about. If we insert this provision, at some time in the future when we do not have such a warm-hearted Minister as myself, we may end up with a law which provides that a child must attend the nearest school. That would defeat the purpose of this measure. We hope children will attend the nearest school but enshrining this in law might have the opposite effect. From the point of view of resources, it would certainly suit the Department if we could say every child with special needs should attend his or her local school. We are paying €20,000 to €30,000 per year in transport charges for children to attend their school of choice and thus meet their particular needs. Transport for special needs pupils accounts for a total of 35% of the current school transport bill, amounting to approximately €35 million. I am sure the Deputy will not object strenuously if I say I reject the amendment, even though my advice from my departmental officials may be to accept it.

While I can accept there are two sides to this argument, on the other hand, there may be four children of primary schoolgoing age in one family and the child with special needs may have to travel on a different school bus. The local school could accommodate him or her if it made some effort but it might decide not to bother.

That is precisely what we are trying to do — inserting it as a consideration. We cannot designate the local school.

I understand the point the Minister is making.

Chairman——

I thought the Deputy promised that he would not intervene further.

I am a politician. On a point of order——

I ask the Deputy to be brief.

Deputy O'Sullivan's amendment includes the words "geographical convenience" while another refers to the "needs of the child concerned". While I have reservations about the whole section, the needs of the child should be mentioned immediately after the reference to geographical convenience. Notwithstanding departmental meanness with resources which could be an issue in the future, the needs of the child might be interpreted to mean that he or she should not necessarily be told to go to the local school unless it was practicable to do so. In many cases, that would be the case but the needs requirement could override geographical convenience. However, the term "geographical convenience" needs to be inserted to emphasise its importance.

In commenting on his benevolence the Minister——

I was reiterating what the Deputy had said.

I did not say it.

I could never accuse the Deputy of that.

We gave the Minister credit a few times, which is new for me. He did not comment on the provision of transport in the context of geographical convenience. It may be convenient that a good transport system links to a school. If possible, this should be examined as a policy issue rather than by way of amendment.

I can see both sides of the argument. As the Minister sometimes reserves the right to think about matters before Report Stage, I reserve the right to think about this issue.

Amendment, by leave, withdrawn.
Amendments Nos. 238 and 239 not moved.

Deputy Morgan has correctly pointed out that amendment No. 240 is very similar to amendments Nos. 242, 243 and 244. We will, therefore, discuss them together by agreement. Is that agreed? Agreed.

I move amendment No. 240:

In page 13, between lines 45 and 46, to insert the following subsection:

"(3) Where the Council fails or refuses to designate a school pursuant tosubsection (1) at the request of the parents of a child, the parents may appeal to the Appeals Board against such failure or refusal.”.

This amendment is intended to give parents the right to appeal. A school has the right to appeal the designation but, as the Bill stands, parents do not, as pointed out in some of the submissions we received. I want to make sure parents have the right to appeal. If no school is designated, they should also have rights under this section.

This is clear. As the Bill refers to the wishes of parents, obviously they do not make the final decision. Amendment No. 242 is in my name. All of the amendments are similar and one of them should be included.

Section 9 gives a school the sole right to appeal designation by the council. Parents do not have any rights, a matter which obviously should be dealt with. The Minister should explain the reason the council's decision can be appealed by the school but not by the parents.

There is another issue. What will happen to a student during the appeals process? Will he or she attend the school which is the subject of the appeal? What will happen in that case? This needs to be clarified.

Originally, the thinking in drafting the Bill was that the focus and imposition would be on the school which was going to be designated and so on. Therefore, we decided it should have the right to appeal. I accept the principle underlying the amendment which would allow parents to appeal but, as we were going through the Bill, we wondered whether parents would want their child to go to a school designated against its wishes. For this reason we decided we would not give parents the right to appeal but if members believe it would add to the Bill, I will include an amendment to that effect on Report Stage. I am not sure I can accept the wording proposed.

Deputy Morgan has raised a very important point which is not dealt with anywhere else in the Bill. Where there is a row about the designation of a school, this will probably not arise but if an education plan has been drawn up for a child, he or she should get into the school or educational facility immediately, even where the parents are appealing the decision. We will have to look at the Bill again to ensure the child will be catered for during an appeal. It might not be possible to do this in this section which deals with the designation of schools but the Deputy has raised a valid point. When an appeal is lodged in football, players before being suspended——

A case from Meath football.

We would perhaps have more experience than most. When an appeal is ongoing, a person can continue playing. This is linked to points raised earlier about the length of time it might take to get through the process. If a child is getting a level of service then, although he or she is at a slight disadvantage if he or she needs more, at least he or she will not be falling further behind. We will look at earlier sections and try to include an amendment to ensure a young person will be looked after during an appeal.

Amendment, by leave, withdrawn.

I will give the subject matter of amendment No. 241 further consideration.

Amendments Nos. 241 to 245, inclusive, not moved.
Question proposed: "That section 9 stand part of the Bill."

The section is opposed by Deputy Gogarty who is not present. Does any member have anything to say on the section which he or she has not said already?

On the hearing of the appeal, the section states the burden of proving the school does not have adequate resources to meet the needs of the child concerned will fall on the board of management. Boards of management are not mentioned often in the Bill. Principals carry much of the responsibility with boards of management staying in the background, although in many cases the board of management will be the court of first appeal. In this instance the board of management will have to prove the school does not have adequate resources. How does the Minister see this operating? It seems to be a matter of proving a negative, which is difficult to do. One can prove one does not have adequate resources by removing resources and facilities.

The Minister mentioned ramps. If ramps are removed, the case can be made that facilities are not in place for those confined to wheelchairs and that insufficient resources are available to redress the situation. Can the council compel a school to provide resources for support facilities and so forth? Can it look at the finances of the school?

The Minister has said the burden will be on a school to prove it does not have adequate resources. My understanding is that it is his responsibility to ensure schools have resources to meet the needs of the education plan. There could be a conflict between a school's claim that it does not have sufficient resources and the appeals board suggesting it is not using them in the right way. This is a grey area; it is unclear if the appeals board will be able to do this. Will the Minister undertake to examine this matter again before Report Stage?

If the principle is accepted that appeals by parents are allowed, will the burden of proof be on parents in such cases? It would be inappropriate to expect a parent to have the resources to present the case in the same way as a principal could.

On the issue of a school making an appeal on the basis of resources, does the Minister envisage that a school could make an argument on the training of teachers who have to work with children with special needs? When launching the Bill, he said the number of pupils with special needs was four times the European average. He also said teachers would receive the necessary training. The difficulty is that the only available training is provided as part of a course or module. I think the word used to describe it is "input". A great deal more is required, although I accept that there are schools where teachers got this "input" while training. Will a school be in a strong position to state it is unable to take a particular child as it does not have the necessary skills to deal with his or her needs? I do not want to put training and resources in the one basket but the argument could well be made and we need to look at how it can be addressed.

On the question of the board of management, this is the body which has ultimate responsibility for the management and day-to-day running of a school. It can happen that a principal has a view on the admission of students with special needs which is contrary to the policy of the board. It is important, therefore, that it has the final say. Obviously, the principal is part of the board to which he or she can make his or her case before a final decision is made. It is appropriate that the burden is put on the board rather than the principal. It is my understanding that the definition of resources relates to adequate personnel, which in some cases can mean a resource teacher in primary schools and having physical facilities available, be they ramps or a lift.

The council will be responsible for providing guidelines for schools on all aspects of special needs education. I would not consider it an adequate case for a school to refuse to be designated on the grounds that a teacher did not receive special training on the education of children with disabilities or special needs. While some teachers specialise in this area, with adequate guidelines, most have sufficient skills and knowledge for the teaching of children with special needs.

Question put and agreed to.
SECTION 10.
Amendments Nos. 246 to 248, inclusive, not moved.

I move amendment No. 249:

In page 14, subsection (1), line 20, to delete "children" and substitute "each child".

The word "children" is used where "each child" would be more precise. This relates to the review of an education plan. Section 10(1) states:

The principal of the relevant school shall review or cause to be reviewed at regular intervals, but in any case not less than once a year, the operation of each education plan for children who are attending the school.

This is a little sloppy. It would be better if the section read "each child".

I will refer the matter to the parliamentary counsel.

Amendment, by leave, withdrawn.
Amendments Nos. 250 to 252, inclusive, not moved.

As amendments Nos. 254 and 255 are related to amendment No. 253, they may all be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 253:

In page 14, subsection (1)(a), lines 21 and 22, after “concerned” to insert “has received the services required as contained in the education plan and”.

These amendments are designed to expand the scope of the review of the progress of a child's education plan. The aim of amendment No. 253 is to ensure the child would receive the services required, as contained in the education plan. Section 8(2)(e) states the plan should include the special education and related support services necessary to enable the child to benefit from education and play a full role in school life. Any review of such a plan should take into account whether these resources have been supplied and, if not, the reason for such a failure. There is no point in having an education plan for which the necessary resources and services have not been made available. The failure of any element of the plan could have as much to do with a lack of resources and services as with anything else. The Minister should accept the amendment in order that any review of the operation of the education plan would be as thorough as possible and that where services have not been provided because resources have not been made available, this could be identified in order to rectify the situation as quickly as possible.

On amendment No. 255, the review of the education plan concentrates to a large degree in section 10 on the perceived failures of the child in not reaching the goals set for him or her. It is important that progress made since the last review is identified.

I support amendment No. 254 in the name of the Minister which will assist with clarification.

In reviewing education plans the focus has to be on establishing if a child is reaching the targets set. Amendment No. 253 focuses on the provision of services. In many cases services are provided but the goals are still not being achieved. It is important that we focus on the achievement of goals. The purpose of the review is to change the plan to meet set goals.

Amendment No. 254 further emphasises the point that for the purpose of a review, any recommendations arising are to help the child achieve his or her educational goals. This subsumes the point made by Deputy Morgan. Once education plans are in place, there will be a legal obligation on the council to provide the necessary resources. It is not a question of a plan being put in place and nothing happening. It is right that a review should focus on the results obtained to ensure the child is reaching his or her goals. If he or she has not reached them, the plan will need to be changed.

We have talked about appeals. If resources are not provided or the education plan does not work, an appeals mechanism will be available. This covers the point the Deputy made.

Amendment No. 255 is well covered in subsection (2).

I accept what the Minister has said about amendment No. 253. There are occasions when resources are made available and goals are not met. My concern is that they may not be met because of a lack of resources. I may raise this issue again on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 254:

In page 14, subsection (1)(b), line 25, to delete “for the amendment of the plan” and substitute “, being recommendations for the amendment of the plan and the purposes which are to assist the child concerned in achieving any of those goals that he or she is not achieving”.

Amendment agreed to.
Amendment No. 255 not moved.
Sitting suspended at 2.35 p.m. and resumed at 5.35 p.m.

I move amendment No. 256:

In page 14, subsection (3), lines 31 and 32, to delete "child concerned is significantly failing to achieve the goals specified in the education plan" and substitute "education plan may need to be modified,".

Section 10(3) reads:

Where, as a result of his or her consideration of that report, the special educational needs organiser is of the opinion that the child concerned is significantly failing to achieve the goals specified in the education plan...

Will the Minister look at the wording of this subsection? My argument is that if we use the phrase "the child concerned is significantly failing to achieve the goals", we are saying the child, not the plan, is failing or that the goals may not be achievable. We suggest it should read: "Where as a result of his or her consideration of that report, the special educational needs organiser is of the opinion that the education plan may need to be modified...", or words to that effect in order that the focus will not be on the child's failure. My argument is that either the plan is failing or that the goals are unrealistic and unachievable. We need to be more positive about the child which the ethos and tenor of the Bill should reflect. The Minister referred to goals not being achieved but should we change them? Who sets the arbitrary goals? The thinking behind the amendment is that perhaps they have not been set correctly.

The wording of section 3(1) "that a student in the school is not benefiting from the education programme" is probably more appropriate than that used in section 10(3). While Deputy Stanton's amendment is well motivated, it may be more consistent to use the phraseology used in section 3.

While I know what the Deputy is trying to get at, I do not think this amendment would achieve it. It is extremely important that we are specific about when an education plan needs to be reviewed. The wording used is, when the "child concerned is significantly failing to achieve the goals specified". That could be after three or six months. If one deletes the words "the child concerned is significantly failing to achieve the goals specified in the education plan" and substitute that the "education plan may need to be modified", that is all very nice and will not upset the child, the parents or anyone else but it will leave the position vague for anyone trying to help the child achieve his or her goals.

What if the goals are wrong in the first place?

I accept the Deputy's point but one will not know this until a plan is in place and a child tries to reach the goals set. If he or she fails to reach them, a review will be required. That is what we are talking about; we are not saying it is the child's fault. It is not a precise science. Professional opinions may differ as to the length of time required for a child to reach a certain goal. The measurement of progress should be that the child is able to do X. If, after six months, he or she cannot do X, somebody can call for the plan to be reviewed. It is an admission that it is not suitable for the child, rather than the other way around.

The child is failing.

The child could be failing but not in the sense suggested by the Deputy. If I insert what he suggests, that the education plan may need to be modified, it will not address the problem. There must be a reason for saying the plan may need to be modified. Some form of measurement is required. One cannot just have somebody having a notion in his or her head that the plan may need to be modified.

Deputy Andrews made a suggestion in regard to section 3(1) about the benefits to the child not being apparent, which may provide the basis for using different wording, but there needs to be some measurement as to whether the education plan is working for the child.

I do not accept what was said about this being a reflection on the child; that is not the case. In drawing up an education plan somebody makes a professional assessment that its provisions will help a child get to a certain point. If he or she cannot get to this point, the plan is wrong, not the child. However, some form of measurement is required.

I will examine the matter to see if the wording suggested could work, in regard to the child benefiting to the extent anticipated. We may be able to do something to that effect. It is not meant to be a reflection on the child but on the plan.

The use of the word "fail" is a problem. Specific children will be affected by this. I agree that Deputy Andrew's suggestion may be a good compromise. Alternatively, we could use words along the lines of not having attained, rather than failing to achieve.

One could say the goals have not been reached rather than that a child has failed to reach the goals.

That is probably a better and more sensitive use of language. Deputy Stanton has looked for this throughout the Bill; he comes up with ideas and Deputy O'Sullivan comes up with the wording.

We both know how important language and the meaning attributed to it are. If the Bill implies that a child is a failure because he or she has failed to achieve certain goals set by an outside party, we are immediately going against the ethos of what we want to achieve in the Bill. We want the legislation to portray the child positively, as a person in his or her own right in order that he or she might reach his or her potential. If arbitrary goals are set and the child fails to reach them, he or she may be seen as a failure. If such language is employed in this area, we will be moving towards a Bill based on failure. That is my concern. I am glad the Minister will examine the way in which we use language in the Bill.

A report will be made by the principal and given to the parents of the child concerned. The special education needs organiser will consider the report and may feel the education plan must be changed. We must get away from the notion that the child has failed. If we think in those terms, it will permeate people's thinking and the way in which everyone approaches the matter. I have seen examples of this in the education system where children have been labelled as failures.

While I accept the sentiments expressed, I cannot accept the amendment as it stands. A number of good suggestions have been made on the wording that we might use to make it more positive. I will submit an amendment on Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 257 not moved.

I move amendment No. 258:

In page 14, subsection (3), line 32, to delete "may" and substitute "shall".

Where the goals set are not being achieved, the Bill states the special education needs organiser "may" reconvene the relevant team. The amendment proposes to change this in order that the organiser "shall" reconvene the team. This would ensure he or she would have to reconvene a group of those relevant to the case. This would strengthen the Bill by ensuring that where there was significant underachievement, the organiser would have to take strong action.

I support the amendment. If the word "shall" is not used, special education needs organisers will not be mandated to do anything.

As I have accepted an earlier amendment, I also accept this one.

Amendment agreed to.
Amendment No. 259 not moved.

As amendments Nos. 261 to 265, inclusive, and No. 267 are related to amendment No. 260, they may all be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 260:

In page 14, subsection (4), line 39, after"parents" to insert "of a child or student".

If the amendment was inserted, the subsection would read: "Where parents of a child or student have reason to believe that their child is not achieving the goals...". I am amazed the amendment was allowed because anywhere else we mentioned the word "student", it was ruled out of order. I tabled it for reasons of clarity but it may now be superfluous. If so, I will not make an issue of it.

In tabling amendment No. 261 we had similar ideas to those discussed about a child failing in dealing with a situation, "Where parents have reason to believe that their child is not achieving the goals specified". We propose the following wording: "Where parents have reason to believe that the goals in the education plan are not being achieved", which is different from "their child is not achieving". It focuses on the plan being deficient and is similar to the one at which the Minister agreed to look.

I am puzzled as to the reason amendment No. 264 was grouped with amendment No. 260. It reads:

In page 14, subsection (4), lines 40 and 41, to delete "and the review of the plan has not occurred in the previous 6 months".

I argue that parents will only look for a review of an education plan where it is absolutely essential to do so. I do not see them putting themselves and their child through this, unless they really believe it is necessary. If something occurs to aggravate the situation of a disabled person and make matters worse, a review may be necessary earlier than laid down in the Bill.

In amendment No. 267 I propose we delete the words "where the principal considers it appropriate to accede to their request". This would remove the discretionary power of the principal in order that if parents felt there was a need for a review, the principal should accede to it.

Deputy Stanton started the discussion by moving amendment No. 260 but by the time he had finished, he stated he would not put the amendment to a vote as perhaps it was not that important. I agree with him. It is clear that we could get into all sorts of hoops.

On amendments Nos. 261 to 263, in the light of the discussion on earlier amendments, we will look at them again. It is not quite the same but the principle of stating the issue in a more positive way is worth considering. While I am not accepting the amendments, I give a commitment to consider the wording again.

Amendment No. 262 would not add to the provision because it is clear that the education plan being referred to is for the individual child. On amendments Nos. 264 and 265, I am not in favour of removing the reference to a review having taken place in the previous six months for the very simple reason that plans have to be given a reasonable time to be put in place, left in place and to work. It would not be in the interests of the child to conduct reviews of his or her programme and chop and change it almost at will in the six month period. Six months is a reasonable period. There is nothing in the Bill to preclude a review taking place in less than six months. If a principal became concerned, he or she would have the discretion provided for in section 10(1):

...the principal of the relevant school shall review or cause to be reviewed at regular intervals, but in any case not less than once a year, the operation of each education plan for children who are attending the school...

The six month period refers to when parents have reason to believe their child is not progressing. If the teacher directly involved with the pupil forms the view that something needs to be done as the education plan is not working, a review can take place.

Amendment No. 267 raises the issue of the principal's consent — a central issue of amendment No. 270. Subsections (4) and (5) provide for one of a number of situations where a school principal can refuse to accede to a request of a parent. In this instance, we are talking about the review of an education plan. It is likely to be uncommon but not inconceivable that a parent could make unreasonable demands on a school. The subsections safeguard against this while subsection (6) safeguards against the school acting unreasonably. We are trying to maintain a balance between the two. A good balance is struck by these provisions. It is inherent in the Bill. For that reason I do not wish to accept the amendment.

It appear that subsection (4) provides the belts and braces in that the principal may have an education plan reviewed at any stage but surely the Minister will agree that those who know the child best are his or her parents. The parents cannot ask for a review if one occurred in the previous six months, they can only request it if it is has not occurred in the previous six months and the principal may decide not to accede to it. It is a double whammy.

My argument is that the phrase "in the previous six months" is superfluous because if something happens to a disabled child and his or her condition has got worse, the effect of the subsection is that the parents cannot request the principal to cause a review to be carried out. The principal can refuse to accede to their request. I argue with the Minister who agrees with me that very few parents would do this except where it was absolutely necessary. They could not formally request the principal to consider carrying out a review where one had been carried out in the previous six months, even though their child's condition may have deteriorated and as a result, might merit more assistance.

I argue the case for accepting amendment No. 264. I agree that education plans need a reasonable time to work but inserting a provision that parents cannot make a formal request for a review in four months if their child has progressively deteriorated seems heartless, particularly when the provision is included that the principal can refuse it. Why tie the hands of the parents and allow the principal to make the decisions, particularly when parents know their children better than anyone else? If the request is vexatious, the principal can refuse.

The Deputy is right that a principal might be able to refuse. However, as the Deputy knows from personal experience, it is difficult for a principal in a local community to refuse some of the requests made, regardless of how unreasonable they might be at the time. I do not think it would occur in many instances. A lot of pressure could be applied if a request is made and the easy thing for a principal to do is to accede to it. The child would then have to undergo review after review. I accept that in most circumstances parents know their child better than anyone else. However, we are talking about the educational programme of a child. Many teachers would dispute who should decide the educational progress of a child. The Deputy should sit across the table from some of the teacher unions with which I have had discussions about such matters. We should be realistic about this issue.

The Deputy mentioned physical sickness or a deterioration in the condition of a person with a disability. If that happens, there will be nothing to stop the parent bringing it to the attention of the principal or teacher, if he or she has not spotted it, and suggesting that a review of the education plan is required. The parent will be entitled to do this. We are trying to avoid a situation where a parent or parents in a small minority of cases visit the school every few months to state the child is not making progress. Parents get caught up in the development of their children and are anxious to see them making progress. If that progress is not immediately visible, some may get over-anxious and make unreasonable demands. That is what this is designed to avoid.

I have had cases in the Department where psychologists and others said the provision being made was suitable for the child. However, the parents moved the child because they believed it was in his or her best interests but they did not do him or her any good.

The opposite also happens.

The opposite has happened but it cannot happen here. The Deputy is looking at this in a negative way. Perhaps he could look at it in a positive way. The principal can at any time declare that a review is needed. He or she would do this on his or her own professional advice and that of other teachers, or the parent could informally request it. There is nothing to stop a parent from doing this. At the end of a six month period if a parent is not satisfied, he or she can formally do so. I have gone as far as I can with these amendments.

Amendment, by leave, withdrawn.
Amendments Nos. 261 to 263, inclusive, not moved.

I move amendment No. 264:

In page 14, subsection (4), lines 40 and 41, to delete "and the review of the plan has not occurred in the previous 6 months".

Amendment put and declared lost.

I move amendment No. 265:

In page 14, subsection (4), line 41, to delete "6 months" and substitute "school year".

Perhaps the Minister will consider this amendment before Report Stage, given that the phrase "school year" might be more appropriate with a two or three months absence.

I will consider it but will not promise anything.

Amendment, by leave, withdrawn.
Amendment No. 266 not moved.

I move amendment No. 267:

In page 14, subsection (4), lines 43 and 44, to delete "where the principal considers it appropriate to accede to their request".

This amendment is similar to amendment No. 270, although they were not discussed together. I take a slightly different line from that taken by Deputy Stanton in that I accept a period of six months. However, parents should have the right and the principal should not be able to refuse. It is a slightly different way of approaching the same issue.

Amendment, by leave, withdrawn.
Amendment No. 268 not moved.

I move amendment No. 269:

In page 14, subsection (4), line 43, after "principal" to insert ", in consultation with the special educational needs organiser,".

This amendment deals with the special educational needs organiser. We already discussed it with amendment No. 28. I am not sure if the Minister will consider it.

He gave an undertaking to consider the principle behind amendment No. 28 but I have forgotten the exact detail.

I will come back to it on Report Stage.

Amendment, by leave, withdrawn.

As amendment No. 273 is an alternative to amendment Nos. 270, they may be discussed together.

I move amendment No. 270:

In page 14, lines 47 to 50, to delete subsection (5).

Amendment No. 266 should have been included with amendments Nos. 267 and 270 because they are related. However, amendment No. 273 does not have anything to do with amendment No. 270. I presume they are grouped because they deal with the same subsection.

That is right.

If, after a period of six months, a parent believes a child has not achieved his or her goals, the parent should be able to make a request to review the education plan. I want to delete subsection (5) and thereby abolish the principal's right to say "No". Amendment No. 273 in the name of Deputy Stanton deals with the length of time involved. The issue of the length of time a principal has to explain a decision would not arise if he or she had to accede to the request from a parent who felt there had been a significant failure after six months. If a parent believes after six months that the child is significantly failing, he or she should have the right to request a review of the plan. Six months is a long time to wait before a review can be requested. I am talking about a significant failure to achieve the 12 month goal. If I was a parent in that situation, I would find it hard to wait a full year before being able to request a review. It is currently at the discretion of the principal who can refuse the request of a parent. That is the reason I want to delete subsection (5). The amendment is related to amendment No. 267.

I do not know why these amendments are grouped together.

They refer to the same section.

I refer to amendment No. 273. Section 10(5) is concerned with cases where a request for a review is made, but no period is set down within which the principal must make a decision. An unreasonable principal — I am sure there are few, if any — could wait for a long period and not make one. The Minister may change this, but in the meantime, the amendment seeks to ensure that the principal must make a decision within two weeks of receiving a request. There is a loophole here that needs to be addressed.

Deputy O'Sullivan's amendment relates to the notion of rights-based legislation and the right to have an assessment. The Minister will reply there are appeals mechanisms but, ultimately, if parents feel strongly that their child needs an assessment or the education plan needs to be reviewed, that should happen. The vast majority of parents will not do so unless they feel they must. Let us trust our citizens in this regard.

I support amendment No. 273 as it adds a sense of urgency by providing a deadline for making decisions. A delay could have a detrimental effect on the child involved. For example, it may take a number of months before a principal could deal with the issue and once the decision has been made, it could take a week before the parents are informed. A telephone call should be made the following morning but I will not argue too much about that. If the Minister accepted the amendment, it would add a sense of urgency and produce quick decisions.

Deputy Stanton is asking me to trust our citizens but I ask him to trust our professional educators.

I accept the point made regarding amendment No. 273, which is reasonable in intent, but I need to consider what is a reasonable timescale and so on. A case was reported to me of a school that would not take in a child with special needs. It was referred to the board of management. The board did not convene for six or eight months but the child could not wait that long. That is an exception rather than the rule, but I accept the principle underlying the amendment. We will provide for a reasonable timeframe. I am not sure two weeks is enough but it should not be much longer than that.

With regard to amendment No. 270, I do not have much to add to similar comments I made regarding amendment No. 266. The Bill gives a central role to parents in the education of their children and that should be the case. However, other people have a role, primarily the school principal and teacher directly involved with the child. Just as parents should have the right to be involved in decision making in respect of their children, school principals also have rights as professional educators. It is reasonable, for that reason, to include a subsection that provides that a principal may refuse to accede to a request from a parent. In this instance we are talking about a review of the education plan.

The Bill provides a safeguard against the parent being unreasonable and the principal, on the other hand, acting unreasonably under subsection 10(6). A reasonable balance has been struck and, for that reason, I will not accept amendment No. 270.

Amendment, by leave, withdrawn.
Amendments Nos. 271 to 273, inclusive, not moved.

Amendment No. 276 is cognate on amendment No. 274 and both may be discussed together by agreement.

I move amendment No. 274:

In page 15, subsection (6), line 2, to delete "Council" and substitute "Appeals Board".

These amendments provide that appeals in respect of the reviews of the education plans are made to the appeals board rather than to the council. This is more consistent with the approach adopted elsewhere in the legislation so that nobody appeals to the body that made the original decision and it is, therefore, more independent.

Amendment agreed to.
Amendment No. 275 not moved.

I move amendment No. 276:

In page 15, subsection (7), line 4, to delete "Council" and substitute "Appeals Board".

Amendment agreed to.
Amendment No. 277 not moved.
Section 10, as amended, agreed to.
SECTION 11.

Amendments Nos. 279 and 282 are related to amendment No. 278 and all may be discussed together by agreement.

I move amendment No. 278:

In page 15, subsection (1), line 18, to delete "Parents may, in respect of their child," and substitute "Parents/guardian, family member, person with special education need of their chosen advocate may".

This amendment is intended to increase the number of people who may appeal to the appeals board. For example, the advocate can make the appeal on behalf of the person with the special educational need. The parents or guardians have decided in many cases that other family members are more qualified or competent to make the appeal.

It is provided for in the legislation, which refers to the person with the special need or their chosen advocate.

That is a good point. Will the Chairman check the wording because there may have been a typographical error in the original draft before I tabled the amendment? If that is the wording, it makes more sense and clears up the issue. I hope I did not include the word "of". In some cases the person with the special educational need might not be able to appeal in his or her own right and, therefore, a parent, guardian, family member or advocate would make it. I will clarify what I am saying now that the question concerning the exact wording has been resolved. It reminds me of Deputy O'Sullivan who earlier ensured correct punctuation was used in one of her amendments. Over Christmas I got a copy of a book entitledEats, Shoots and Leaves, which has a number of different connotations in regard to the use of punctuation.

Would the Minister have a problem with a guardian, family member or advocate making an appeal on behalf of a child, or is there a specific reason why section 11(1) commences with the words "Parents may" as opposed to "Parents or guardians"? Was this wording used purely for purposes of brevity or does the Minister object to it being slightly broadened?

The section refers to parents for the purposes of definition in law. Parents would include guardians.

Does it include a family member?

No. I would not favour extending it to any and every family member. There were 12 in my family. I do not favour widening the proposal to that extent.

I do not consider it would be desirable that the advocate should lodge an appeal. The role of an advocate, certainly the role intended in the disabilities Bill, is to inform and advise parents, not to be pro active. A decision to lodge an appeal under this section is very important. I am satisfied it should be solely the decision of the parents, parent or guardian of the child concerned.

The aim of amendment No. 279 is to make it clear that the subject matter of an appeal is the manner of the discharge of their duties by the council or a school principal. This is to ensure that the council and principal act reasonably and within their powers and responsibilities under the Bill.

Amendment No. 282 appears reasonable. I will consult with the Parliamentary Counsel to ensure it is acceptable. It may not be necessary but it would be useful to include it.

I did not realise the amendment was being discussed now. It is more relevant to section 8(8) than 8(10) because subsection (10) has a built-in mechanism for review, which subsection (8) does not have.

Will the Minister take note that some parents may not feel confident about appealing a decision themselves? They might become aware of something on the advice of an advocate but they might not be able to give a proper account of the situation. I will not press the amendment but I would like if all parents, even those with literacy problems or an educational disability, could contribute to the process.

Earlier, we allowed for the parent to appoint someone in the case of some appeals. I am not sure about this instance, but I will check out the position. In this instance we are concerned with who makes the appeal. It is important that the parent should do so. Once the appeal is before the appeals board, it would be possible for the parents to have someone to speak for them.

With regard to the Minister's amendment, currently the legislation provides that the parents can appeal against any statement or description of their child's special needs as set out in the education plan, or any other statement or description. However, the amendment would restrict the right of parents in this regard by providing that they may only make an appeal in respect of the discharge by the council or a principal of a school of its or his or her duties. What if the description of the child's special needs, which gives effect to the way the council or school discharges their duties, cannot be appealed? I have no problem with an appeal against the discharge by the council or a principal of its or his or her duties, but there should be room for parents to appeal a description of their child's special needs, if it is causing some of the problem.

Under section 11(1), paragraphs (a)(i) and (ii) and (b), it is possible to appeal against the description of the child’s special needs and the discharge of duties.

Will the amendment not confine it to the discharge of duties?

That would include the discharge of any statement or description.

Is the effect of the amendment to include both?

Amendment, by leave, withdrawn.

I move amendment No. 279:

In page 15, subsection (1), line 20, to delete "(a)(i) any” and substitute the following:

"(a) the discharge by the Council or a principal of a school of its or his or her duties in relation to—

(i) any".

It seems Deputy Ó Snodaigh is correct in his interpretation, although I am not clear about the Minister's response to his points. When the section is amended it will be easier to read.

Both aspects will be included.

It is included afterwards. It is on the basis of an appeal against the discharge of duties, not against the statement itself, that the statements will be looked at.

Is it included after the word "plan"?

I will consider it and submit an amendment on Report Stage in order to bring it back to its original meaning, which was fine. It was commendable that parents had as much scope as possible for appeal.

I was initially impressed with the Minister's amendment. There are two aspects. First, there is the discharge by the council or the principal of a school of its or his or her duties, which is the action, and second, there is the description. The amendment strengthens the section because it means that parents could appeal against the discharge of duties by the principal or the council.

The problem is the deletion.

It includes the statement and the way the discharge of duties takes place rather than the statement itself.

If the amendment is accepted section 11(1) will state:

Parents may, in respect of their child, appeal to the Appeals Board against—

(a) the discharge by the Council or a principal of a school of its or his or her duties in relation to

(i) any statement or description of their child's special educational needs as set out in the education plan, or

(ii) any other statement or description appearing in the education plan as initially prepared or as it stands amended for the time being in consequence of a review,

on the ground that the statement or description is incorrect or inadequate to meet the child's special educational needs, or

(b) the discharge by a school or a health board of its duties with respect to an education plan on the ground that there has been a failure by it to implement any part of the plan.

Both aspects are covered in the section. However, we will look at it again.

Are we entitled to submit an amendment on Report Stage?

Yes, as long as notice is given on Committee Stage, which the Deputy has done.

Amendment agreed to.
Amendments No. 280 to 282, inclusive, not moved.

I move amendment No. 283:

In page 15, subsection (1) between lines 26 and 27, to insert the following:

"(b) the failure to include any particular action or service in an educational plan, or”.

The right to appeal is quite narrow. One may appeal for the reason we have just discussed or if the school or health board fails to implement part of an education plan. However, one cannot appeal the fact that something has not been included in the plan. If a parent believes his or her child needs speech therapy, for example, but this has not been included, the parent may not appeal the omission. My amendment would ensure a parent could appeal. That is not possible as the Bill stands. I am attempting to broaden parents' appeal options if they believe the plan is inadequate.

Paragraph(b) provides the right to right to appeal against failure by a school or health board to discharge its duties. I will have to think about the Deputy’s amendment. One could argue that the process of drafting the education plan involves parents, the advocate and various other persons, including psychologists. It should include everything. I see the point the Deputy is making. It might give parents a greater say in the whole process if they could appeal something not in the plan but I do not know how that would work out legally.

As the Minister is prepared to look at the amendment, I withdraw it at this stage.

Amendment, by leave, withdrawn.
Amendments Nos. 284 and 285 not moved.

I move amendmentNo. 286:

In page 15, subsection (2), line 30, after "hear" to insert "an appeal under this section within a period of 30 days from the date of the receipt of the appeal by the Appeals Board".

Section 34 states any appeal will be heard within 30 days of the date of receipt of the appeal. As the section stands, it could take up to two months for an appeal to be heard. This amendment would make the section consistent with section 34.

During the debate on Second Stage I asked if there was a reason for the different timelines. Can the Minister clarify this?

Amendments Nos. 286 and 287 refer to separate timelines. I have given an undertaking to look at all the timelines in the Bill when we have completed Committee Stage to see if we can strike a balance between getting the thing done and getting it done properly.

Two months seems a long time for a child to wait.

The point made about trying to cater for children while they are waiting is also important.

Amendment, by leave, withdrawn.
Amendments Nos. 287 to 292, inclusive, not moved.
Section 11, as amended, agreed to.
SECTION 12.
Amendment No. 293 not moved.

Amendments Nos. 294 to 296, inclusive, and No. 299 may be discussed together.

I move amendment No. 294:

In page 16, subsection (1), line 2, to delete ", with the consent of the Minister for Finance,".

We have reached the contentious issue of resources. I believe one of my amendments has been ruled out of order.

Amendment No. 297 has been ruled out of order, as has amendment No. 298.

I feared this amendment would have been ruled out of order also. Amendment No. 295 seeks to include the words "having due regard to the duties of the State pursuant to Article 42 of the Constitution".

All of the amendments to section 12 seek to strengthen the Bill in providing the resources necessary to address the needs of children with special needs and not having that provision curtailed by lack of resources. We all realise that we must live within available resources but because section 12 is so curtailed, it does not give children with special needs the same respect or rights as other children in the provision of resources.

The section is more curtailed than the corresponding section 13 of the Bill which was withdrawn last year and which did not include a reference to the determination of the Minister for Finance. That section was, therefore, stronger than this section which is severely curtailed when one considers that a child has a right to an education under the Constitution. I want to include the reference to the Constitution to underline that fact that this is a constitutional right and that the State should, therefore, provide the necessary finances. I seek to achieve something similar to what Deputy Gogarty sought to achieve in his disallowed amendment. I wish to ensure the State will provide the necessary resources.

If we draft legislation which states children with special needs should have an assessment and be provided with the resources necessary to meet their needs but include a section which curtails those resources by reference to the opinion of the Minister for Education and Science and the consent of the Minister for Finance, we are saying they do not have the right to have resources provided to meet their needs. This section weakens the intent of the Bill. If resources are not provided, much of what we have been talking about will not happen.

This section puts the Ministers for Education and Science and Health and Children and their successors in a difficult position. They are being given a specific job to do but their hands are being tied by having to gain the consent of the Minister for Finance. I realise that this is a standard provision but, nevertheless, it will cause difficulties.

We heard at committee hearings and from parents of children with special needs that following publication of the Bill in the middle of July, there was a move within the Department away from a rights based approach. I expect the Minister to reject what I am saying because, when I met officials of his Department in Athlone, they rejected it also. Those who appeared before the committee felt that following publication of the Bill, there was a move within the Department away from the rights based approach adopted following the delivery of court judgments to one based on resources. That matter has been raised with me in the strongest terms, even by parents not involved in this area. There is a strong case to be made for change. In this regard, obviously, responsibility stops with the Minister.

The resources issue is one upon which the Bill will either succeed or fail. If the NEPS cannot be rolled out, as envisaged prior to publication of the Bill, how will it work? The Minister said at the launch that he was not sure if extra resources would be available and that he may well have to work within his current budget. If the NEPS cannot do what is required of it now, how will it do all that will be required of it if and when the Bill becomes law?

I referred to this issue when discussing amendment No. 214 in which, as Deputy O'Sullivan said, I attempted to delete the reference to section 12 regarding the resources needed for education plans. While this is one of the shortest sections of the Bill, it is a case ofcaveat emptor.

I do not like to be facetious but when I think of the Minister for Finance, Deputy McCreevy, I am reminded of the programme "Bull Island" which featured a skit in which everybody in the church stood up and said the words "in the national interest" in response to the mantra. This provision is similar with the reply being, "subject to resources determined by the Minister". It is the responsorial psalm of the Bill. Although it is standard practice for the Minister for Finance to be referred to in legislation, it is unfortunate, given the judgment in the Sinnott case, that the wording of the Bill cannot be as open-ended as possible.

I will not repeat what I said on amendment No. 214 because we are all aware of the limitations on resources. This section introduces a specific limitation because rather than the provision being based on need it is subject to the resources available. It will prevent needs being fully met because of the dictates of the Minister for Finance on the level of resources that will be available in a particular fiscal year. One could argue that the resources needed for those with special educational needs could be diverted from SSIAs and the pensions fund where they are less necessary. Expenditure in other areas is not as popular among Opposition Members as it is among Government Members. If there was some leeway, we might not face another challenge in the courts.

I referred to the attempt being made in the section to redefine Article 42 of the Constitution and was unable to table a number of tidying up amendments because of the prohibition on financial changes. While I am not a legal expert, I believe the section will leave the State open to further challenges. The legal opinion of many of the groups with which we have been in contact is that this will be the case. I know the Minister disagrees with me on that point but I would like him to explain why he believes the resources needed will match those determined by him and the Ministers for Finance and Health and Children. The discrepancy in the section will widen to such an extent that needs will not be met. That is when court challenges will ensue. How will the Minister ensure needs will be met in so far as is practicable?

The explanatory memorandum states section 12 imposes a statutory duty on the Minister. It also states that in carrying out their functions Ministers must receive consent from the Minister for Finance. This provision reflects normal procedures governing the public finances.

A duty is no longer statutory when a condition is attached to it, as is being done in the Bill. Perhaps the Minister for Finance will surprise us and provide all the necessary resources but I doubt it, given the right-wing policies he has introduced and the manner in which his budgets have been compiled. A future Minister for Finance might be better, or worse. Rather than include such caveats in the Bill, we should provide that the duty is statutory.

Judge Barr had this to say in the High Court:

Needs should be met as a matter of constitutional priority and savings, if necessary, should be made elsewhere. A citizen's educational right should be responded to by the State in full. Partial response is no justification in law even in difficult financial circumstances which may entail the raising of new tax revenue to meet such claims.

The provision in the section should not be dependent on the consent of the Minister for Finance, even though such a reference is included in all legislation. We are legislating for a statutory duty in respect of rights that can be upheld. The only way to do this is by guaranteeing resources and financial support. This legislation will fall by the wayside if resources for the educational programmes and plans drawn up by principals are not provided. We should not raise the hopes of parents and children if they are not going to be given the resources required.

I hope the Minister will reconsider this section and remove the caveat referred to. We should ensure the legislation is implemented in full.

The Minister has referred to this section on a number of occasions. To his credit, he has endeavoured to do the best he can to ensure resources will be made available. As others have said, this matter is crucial. The Bill will not work if resources are not made available.

Section 12(3)(a) and (b) refer to the formulation of policy and state the Minister concerned “shall have regard to and take account of...” a number of laudable principles such as constitutional requirements and educational provision to ensure children with special educational needs will have the same rights to avail of and benefit from appropriate education. I assume this means appropriate to them. This is laudable.

We mentioned the phrase "shall have regard to" when discussing an earlier amendment but the Minister rejected it and inserted something I believed was stronger. The phrase may have been "shall take account of".

It is "shall do so in accordance with".

That is correct. I am concerned about section 12(1) which states:

The Minister and the Minister for Health and Children shall each, with the consent of the Minister for Finance, out of moneys provided by the Oireachtas, provide such moneys and other resources as are determined by him or her for the purposes of the implementation of education plans.

The phrase "determined by him or her" is the strongest part and gives the Minister of the day — not the warm-hearted Minister before us — huge power to determine the level of resources available. This is not resource driven but by the determination made by the Minister of the day. With respect, this is already happening.

I gave an account of meeting parents this week who told me how their child used to be taken to a special needs school by taxi with an escort. All of a sudden they were informed that this was to be changed; the escort was withdrawn and they had to make do with a reduced amount of money. While I hate being critical, the parents concerned have a special needs child who is precious to them. It should be possible for such parents to enter a dialogue with the Department. When the parents came to me, I telephoned the Department but I am still awaiting a response. If I, as an elected Deputy, cannot get a response, what hope do the parents have? This indicates the fear and frustration of parents. I merely wanted to discuss the matter in a reasonable way with an official to see if it was possible to help or reach a compromise. I am still waiting for my call to be returned. The parents are worried about how they will get their child to school. The child has made fantastic progress. I know people are under pressure and that there are resource implications but the Minister knows how precious children are to their parents and how important it is to create a climate of compassion and dialogue to try to assist parents who want to do their best for their children.

I am worried that this provision is dependent on the determination of the Minister. If resources are said to be required, they are.

I ask the Minister to explain his amendment which seeks to delete the words "to or in respect of schools and their employees". This seems to weaken the section further. With this phrase, the implication is that resources will be provided directly for schools in accordance with the education plans drawn up and their costings. However, this will now become a general provision. I do not believe the Minister should have a problem with amendment No. 299 which would allow resources to be provided for the preparation of education plans as well as for their implementation.

This is a very important section. I do not see the same doomsday scenario as other members. I do not understand the reason Deputy Ó Snodaigh quotes with approval what Mr. Justice Barr had to say.

I rarely quote Mr. Justice Barr.

I am stunned that the Deputy has quoted him in general and very surprised that he has quoted him with approval when he has advised a separate arm of the State on how to conduct its affairs. He has advised that we should raise new tax revenue in certain circumstances. I do not know from where the Deputy got the quotation or the context in which it was made. It would be bizarre for us to try to emasculate our powers as elected representatives and those of the Government to determine the application of resources. Determining how resources are to be expended is fundamental to politics. However, we can legislate for priorities.

The key phrase is in line 24; it refers to "the common good" which is often interpreted. Recently the Supreme Court decided that the common good was sufficiently important that it would allow a limitation on private property rights. While we may be getting too philosophical, "the common good" is a key phrase in the Constitution and holds the key to this section.

I support Deputy Stanton in one matter. Earlier in the Bill we upgraded the phrase "shall have regard to" to "shall do so in accordance with". This places a greater obligation on the relevant Minister to comply with the provisions of Article 42 of the Constitution. In general, it is normal for the Minister for Finance to have this power. I support such powers lying with the Government. However, in this context, it is important that we require the Minister to have regard to Article 42. I would support such an amendment, even though none is suggested at this stage.

I agree with what the Deputies have said about resources being the key to delivering the provisions of the Bill. That is the reason section 12 is worded as it is. Every Bill contains a standard reference to its implementation out of moneys voted by the Oireachtas and approved by the Minister for Finance but we have gone much further in this Bill to make it clear that it is the duty of the Ministers involved to take into account the principles we have outlined. The Bill gives priority to young people with special needs.

Section 12 is the clearest statement in any legislation of the duty of the Government through the relevant Ministers, in this case mainly the Ministers for Health and Children and Education and Science, to provide the resources necessary to implement education plans. As with any Bill, the section acknowledges that the provision of resources from public funds is ultimately a matter for the Government of the day as the Executive arm of the State. That is the normal provision. In this instance, however, the section provides that certain principles must apply before I make decisions on expenditure. In recent Estimates I have applied priorities which include disadvantage and special needs. I will now be required by statute to apply these principles. This will give priority in my budget to the provision of resources for children with special educational needs but I must work within the overall budget I receive from the Minister for Finance.

With regard to amendment No. 294, the requirement to obtain the consent of the Minister for Finance for public expenditure is a key feature of Government accounting, as Deputy Andrews and others have noted. It is not constitutionally possible to exclude the Minister for Finance from issues related to public spending. Even if we wanted to do so tomorrow morning, it would not be possible. In fairness, some of the Deputies present understand and have acknowledged the position.

Many of the representative groups which do not understand the way in which this aspect of legislation operates and are not as accustomed as Deputies to dealing with legislation have expressed reservations about this provision. During the consultations and in the submissions we received I noted a belief that the Minister for Finance would be involved in day-to-day decisions, almost on a case-by-case basis. The committee should make it clear that this is not the case and that the responsibility will lie with me or my successor or the Minister for Health and Children. My successors and I will have to take into account the principles and priorities outlined in this legislation. The Minister for Finance will not be involved in specific cases or the day-to-day operation of the legislation. He sets the overall spending limits within which each Minister must operate. Departmental expenditure is the responsibility of individual Ministers.

My good friend and colleague, the Minister for Finance, has taken something of a bashing, not only today but also for a considerable period, for being parsimonious in allocating money to those with special needs or the disadvantaged and is painted as being very right-wing. Since 1997 this parsimonious, right-wing Minister for Finance with no social conscience has provided additional funding of about €650 million in the health funded support service for people with disabilities, a huge amount of money, much more than was expected when the task force was established in 1995-96 to discuss what was needed for people with disabilities. The figure being sought to implement the plan at that stage was, I believe, €60 million, whereas €643 million has been allocated since 1997.

Between 1999 and 2002, this extra funding provided about 1,700 additional residential places, mainly based in the community, 465 extra dedicated respite places and 2,950 day places in the mental health and disabilities area. In education alone, this miserable Minister, as Deputies continually describe him, has given my predecessors——

Is the Minister looking for his job?

My predecessors and I have been able to employ almost 5,500 special needs assistants. We now have almost 5,500 teachers, adult resource teachers and special learning teachers in special schools. The Minister for Finance has provided sufficient funds for these changes in the past four or five years. A little balance is required as regards what has been provided. While it is not perfect, a lot has been done and there is more to do. We should acknowledge this. The Minister for Finance has been bally-ragged a little too much with regard to his attitude.

The Minister should consider the matter balanced.

Deputy O'Sullivan asked me about amendment No. 296. It corrects an oversight in the original text and strengthens, rather than weakens, the provisions of the Bill. The current text was designed to provide resources for schools for the implementation of education plans. In practice, however, following consultations and suggestions made from across the floor and by various groups, education plans will now be implemented in many circumstances and places, including perhaps the child's home or a health board centre. The amendment will ensure the duty to provide the required resources extends to those circumstances also and, as such, broadens, rather than narrows, the provision.

Thanks to the generosity of my good friend, the Minister for Finance, I have no difficulty in accepting amendment No. 299 to provide resources for the preparation of education plans. As stated, I cannot accept amendment No. 294 because it would not be constitutional.

I thank the Minister for accepting one of my amendments, amendment No. 299. I accept the point he made regarding amendment No. 296. Including other places of education in addition to schools is an important provision. With regard to his good friend, the Minister for Finance, the reason he has been able to provide so much funding since 1997 is that taxpayers have been supplying him with extra resources, thanks to Governments which built up the economy prior to 1997.

We will take a bow.

To suggest the Minister is being generous or allocating these funds from his own pocket and solely as a result of the work of this and the previous Government is not a realistic assessment of recent economic developments.

On the issue of consent of the Minister for Finance, I am aware that because some of us belong to parties which have been in government, we are expected to agree to have the requirement to obtain the consent of the Minister for Finance included in legislation. In this context, however, a right under Article 42 of the Constitution is involved. It has been elaborated on considerably in case law, including by Mr. Justice Barr and others in the Sinnott and O'Donoghue judgments and so forth.

Section 12 does not advance in any way the right to an appropriate education already available to children under Article 42 of the Constitution. I fail to see the reason we need to include the requirement to obtain the consent of the Minister for Finance with regard to the expenditure of moneys to provide for the constitutional right of children. The section does not give children, including children with special needs, anything to which they are not already entitled. I reject, therefore, the argument that we need in this case to seek the consent of the Minister for Finance because the Constitution overrides the Minister for Finance or any other Minister. My reading of the legislation is that the Minister for Finance has a duty to provide the funding required to guarantee the constitutional rights of all children. I will, therefore, press my amendment.

The Minister for Finance is the only member of the Government mentioned in the Constitution and who has, therefore, a constitutional duty and obligation. It will be necessary to balance rights with duties and obligations. It is clear we will not reach agreement on the amendment.

Amendment put and declared lost.
Amendment No. 295 not moved.

I move amendment No. 296:

In page 16, subsection (1), lines 3 and 4, to delete "to or in respect of schools and their employees".

Amendment agreed to.
Amendments Nos. 297 and 298 not moved.

I move amendment No. 299:

In page 16, subsection (1), line 5, after "the" where it secondly occurs to insert "preparation and".

Amendment agreed to.
Amendments Nos. 300 and 301 not moved.

Amendments Nos. 302 and 401 are related and may be discussed together.

I move amendment No. 302:

In page 16, subsection (3)(b), line 31, after “needs” to insert “and that children with educational disabilities receive the services required to meet their needs in accordance with assessments and educational plans prepared under this Act”.

This amendment was suggested in one of the submissions we received. I do not have a note on which one it was. The amendment seeks to strengthen the section to ensure children would receive their rights and the services required under it, given that is so circumscribed by the opinions of the Ministers for Education and Science and Finance.

I am inclined to agree with Deputy O'Sullivan. Will the Chairman allow me to elaborate by referring to amendment No. 297 which has not been allowed?

I am disposed to allowing a minor discussion. To be fair, the amendment has some merit.

In subsection (1) the substitution of the words "as are determined by him or her" by "as are necessary" would have softened the section. Amendment No. 302 proposes to do something similar by the insertion of the words "and that children with educational disabilities receive the services required to meet their needs in accordance with assessments and educational plans prepared under this Act." Deputy O'Sullivan's amendment has been allowed while mine has not.

If an assessment is carried out and a need is identified, it is important that it is met. If a service is required, it should be made available. Otherwise, people will lose faith in the Bill. Deputy O'Sullivan's amendment seeks to address this.

The amendment is not necessary because children have to be provided with the education related services they require in accordance with the provisions of the Bill. These include assessments and education plans. Amendment No. 401 in my name confirms that the appeals board has to operate within the policy framework laid down by the relevant Ministers. Deputy O'Sullivan's amendment is not necessary but we will re-examine it on Report Stage. The whole thrust of the Bill is that the child be assessed, that a plan be drawn up and services provided.

I welcome the fact that the Minister said he would consider the amendment on Report Stage. I strongly believe it is important to include it in section 12, the section which implies that there might not be enough resources made available by the various Ministers. The amendment would strengthen the obligation on them to provide the necessary resources to implement the Bill.

Amendment, by leave, withdrawn.

Amendments Nos. 303 and 304 have been ruled out of order.

Is there any appeals system in the case amendments ruled out of order?

The note I have received on amendment No. 303 is very interesting. It states it is proposed that the Minister shall consider the establishment of an independent advocacy service. While the amendment would only specifically require the Minister to consider its establishment, it is possible that the Minister would then decide to establish such a service. This could be done administratively in this instance. In other words, there would be no need for additional legislation to allow for such a service to be established. As this would be an additional service not provided for in the Bill, it would have an associated cost. Therefore, there is a potential for an increased charge. The discretion the amendment would give the Minister, if he were to act on it, would lead to the increased charge.

It is stopping the Minister from thinking.

They were generally allowed in Social Welfare Bills.

Apparently, the advice is that if there is a cost, it must be provided for specifically by a Minister in an amendment.

I accept that but did not believe it would cost anything for the Minister to consider something. Perhaps Ministers thoughts are more expensive than those of ordinary mortals.

Very expensive.

Amendments Nos. 303 and 304 not moved.

I move amendment No. 305:

In page 16, between lines 31 and 32, to insert the following subsection:

"(4) The Minister shall take into account the views of the Deaf community in the provision of resources and when determining policy under this Act.".

When we held hearings earlier in the year, there was a very interesting submission from delegates from the deaf community which made clear the importance of Irish sign language and emphasised that it was separate from other languages. They also communicated the need for special schools for the deaf. They were not in favour of integration or inclusion in mainstream schools as they believed schools for the deaf were far more effective.

The Minister should take these views into account when providing resources and determining policy under the Bill. The deaf require a different approach. I am interested in hearing the Minister's views on the deaf community's submissions to both him and the committee. My amendment seeks to flag their needs as special and separate from those of others. The Bill should acknowledge this. It is curious that the Minister can take account of something but taking account of and considering something are obviously two different matters.

We have refrained from identifying in the Bill particular groups with disabilities for particular reasons. I firmly believe seeking to single out any individual disability community is patently unfair to members of other groups. Attempting to list all of the relevant groups would be impossible. The Bill takes into account that those with different disabilities have different needs, all of which have to be accommodated in the Bill. We have dealt with this to some extent.

The Bill attempts to ensure the rights of all those with disabilities are respected. In this context, singling out any one group would not be in keeping with its spirit. The Deputy raised a point about the deaf community specifically. Even within that community, views differ on how the deaf and hard of hearing should be dealt with. The aim of the legislation is to achieve the best approach that allows a person to reach his or her full potential. That is the best way forward without being prescriptive about whether it is sign language or otherwise that is used. I will not accept the amendment for reasons of equity. I cannot be seen to make more of one disability than another.

What are the Minister's views on Irish sign language and the provision of same in the training of teachers and special schools for the deaf?

I support it if it is the most appropriate method of helping a deaf pupil to reach his or her potential. However, there are differing views. I have met two groups which have different views on the matter — those who agree and those who do not. The approach to be taken is very much an individual choice for parents. Provision has been made for special schools for deaf children. I am aware that a small number are in mainstream schools.

Amendment, by leave, withdrawn.

I move amendment No. 306:

In page 16, between lines 31 and 32, to insert the following subsection:

"(4) The Minister shall take into account the needs of special schools in the provision of resources and when determining policy under this Act.".

The idea behind the amendment is similar to the last one. Special schools, as such, are not referred to in the Bill. There is concern, for instance, about the future of ABA in CABAS schools while there are other special schools across the country. How does the Minister envisage the legislation will affect these schools? How will they be resourced? Will the provisions relating to assessment and so on apply to them?

Special schools are recognised in the same way as mainstream schools. The legislation makes no distinction in this regard. Section 12 seeks to ensure that in formulating policy on special needs the constitutional rights of all children will be upheld and that all children with special needs will be able to avail of and benefit from an appropriate education. In some cases this can mean a special class, a special unit attached to a school or a special school. For that reason we have not been prescriptive. The aim is to treat everybody equitably and fairly. The amendment is unnecessary as special schools are included in the general reference to schools.

Amendment, by leave, withdrawn.

I move amendment No. 307:

In page 16, between lines 31 and 32, to insert the following subsection:

"(4) The Minister, and the Minister for Health and Children shall consider the need to consult and to co-operate in order to identify and care for the health needs (if any) of children and students (as recognised under this Act) with special education needs.".

A number of children have special medical needs. In the course of the joint committee hearings we were told about children with severe and profound disabilities. Concern was expressed that the medical and health needs of these children were not being addressed due to certain court case results where education was deemed to take precedence over health issues.

This is a sensitive and delicate issue. It was put to us that the school day and school year did not adequately cover the needs of the children concerned and that in some cases the supports they had previously enjoyed had been withdrawn. Educational supports had been substituted for health supports. There is a need for both.

This is a great dilemma. Schools are charged with the education and care of children. Does the Minister agree that teachers and schools do not have the necessary training, resources or backup? The health service is not in a position to adequately look after the educational needs of certain children. There is a need for co-operation and consultation between the Ministers for Health and Children and Education and Science, their Departments and the agencies involved to ensure the necessary care is provided in tandem with education. One should not exclude the other, neither should one take precedence over the other.

An earlier amendment which was ruled out of order referred to the impact of holidays and other breaks on the education of children with special educational needs. Parents are worried about the long summer holidays. As the Minister is aware, the progress of children with special educational needs can be affected by a long break which often results in regression. The children concerned need continuity of support and service from both the health and education sectors. This is a serious matter.

The continuum of care and where one draws the line — if one can draw the line — are also issues of concern. A parallel tapering off is required. It is important that this is recognised. I am not sure if this can be incorporated in the legislation but I wanted to draw it to the attention of the Minister. It was brought to our attention by parents of children with severe and profound disabilities, for whom it is of great concern. Under the Constitution, we must, properly and appropriately, provide for an education and educational support for the children concerned. That should not mean we reduce the caring and health supports they require also but this seems to be happening.

I support the amendment. The parents of the group in question made a very strong case to the joint committee and we all took on board what they said. Some spoke of the experience of the Navan Road school where there had been a changeover between the Departments of Health and Children and Education and Science. This gave rise to difficulties which need to be addressed in the Bill.

I also support the amendment which I hope the Minister will take on board. I also hope we will see a similar or complementary measure when the disabilities Bill is brought forward.

As a matter of routine, the Department of Health and Children liaises with the Department of Education and Science. Later sections of the Bill provide for close co-operation between the special education council and the health boards. Due to this, I do not propose to accept the amendment. In saying that, this is the area which presents the greatest challenge to us, the co-ordination of education and health services.

While I do not wish to exacerbate the situation, the difficulty in the case of the school on the Navan Road, to which Deputies referred, was avoidable. It should not have happened the way it did. There was an unfortunate clash. I met some of the parents and children who put their case very strongly. I could not argue with the point being made. It cannot be an all-education or all-health model in these cases, there must be co-operation between the two Departments. While there was no conflict between the two Departments on this, both want to solve it. The difficulty was on the ground and we are trying to move forward. I do not want to exacerbate the situation or open old wounds. The essential difference the Bill will make is that it provides for an education plan. There was no plan involved in the circumstances mentioned.

This is not the only place where this has happened. With the team being put together, the education plan will have to take account not just of the child's educational needs but other needs also. Some of the parents I met on that occasion stated their child perhaps needed to be educated in using the toilet. Do we need a fully qualified, card carrying INTO member to do this? We are trying to move away from education taking place in a particular institution in particular circumstances and delivered by particular persons to recognising the child's needs and how best to fulfil them. We should ask if a fully fledged teacher is necessary or if a care worker with suitable training can provide for a child's educational needs. That is what the Bill attempts to do.

I accept the principle behind the amendment which is dealt with in section 36. It imposes a duty on health boards to assist in the preparation of education plans and help the council to perform its functions. The interconnection between the Department of Health and Children and the Department of Education and Science will be in place. When we come to section 36, we will have a good discussion on the matter because we can learn from each other. It should be right in the Bill but it is possible that it is not. I want to hear the Deputies' views on it. The amendment is not necessary but further on in the Bill we might be able to strengthen the provisions for the connection between the two Departments.

I am pleased that the Minister has acknowledged that the spirit of the amendment is important. This section deals with resources in respect of which it is important that we recognise health needs form a part. The Minister has said the health boards will be involved in preparing education plans but I am concerned that will not explicitly include health needs. This is very important, as we saw in the example cited. Things can go wrong; education cannot replace care. That does not mean, however, that education can be excluded from the plan. I will withdraw the amendment until I see how the Minister addresses this area.

Amendment, by leave, withdrawn.
Question put: "That section 12, as amended, stand part of the Bill."
The Committee divided: Tá, 7; Níl, 5.

  • Andrews, Barry.
  • Curran, John.
  • Dempsey, Noel.
  • Hoctor, Máire.
  • Killeen, Tony.
  • McEllistrim, Thomas.
  • Mulcahy, Michael.

Níl

  • Enright, Olwyn.
  • Gogarty, Paul.
  • Morgan, Arthur.
  • O’Sullivan, Jan.
  • Stanton, David.
Question declared carried.
Progress reported; Committee to sit again.
The select committee adjourned at 7.45 p.m. until 9.30 a.m. on Wednesday, 4 February 2004.