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

Before calling the Minister I should have agreed times for the sittings today. I assume we will do the same as last week. Many factors are at play, including the availability of the room and so on. Unfortunately, there is a Committee Stage debate in the Dáil later today, so we can expect to be disrupted. I propose we sit from now until 10.30 a.m., after the Order of Business until 2.30 p.m. and from 5.30 p.m. to 7.30 p.m. Is that agreed? Agreed.

SECTION 13.

I move amendment No. 308:

In page 16, subsection (1)(c), line 42, after “employees”, to insert “and, in particular, provide to the Council such information as the Council may from time to time reasonably request for the performance by it of its functions”.

This amendment places a duty on schools to provide the council with the information it will need to do its job effectively. It is just a precaution. I presume it will happen voluntarily.

Does anybody wish to comment on that?

The amendment imposes this duty on the board of management but not on anybody else. I assume that includes principals, employees and so on.

The board of management has legal responsibility so we generally use the phrase "board of management". However, a board of management would include a principal and so on.

Amendment agreed to.

To my surprise, amendment No. 309 does not have an attached note so it appears to be in order.

I move amendment No. 309:

In page 17, subsection (1)(e), lines 2 and 3, after “children” to insert “and students”.

Have we discussed this amendment already?

No, although in every other case where the word "students" has appeared, my notes have indicated that the amendment is out of order.

We could spend much time discussing it if that is the case.

The Deputy managed to make his point. The matter has been mentioned a few times even though it was not in order at any time.

Nonetheless, I am not changing my mind on it.

We had this debate already with regard to age. This subsection of the Bill states that teachers and other relevant employees of the school are aware of the importance of identifying children with special educational needs. This would mean that a board of management would ensure that this only happens with regard to people under the age of 18 years.

I presume this amendment has not been ruled out of order because it is an awareness raising mechanism. It does not ask anybody to do anything except to raise awareness of the importance of identifying children with special educational needs. It could happen that there are students in a school over the age of 18. Adult students now attend many schools and it would not cause the earth to wobble on its axis if the Minister were to accept the amendment. Its purpose is simply to raise the awareness of teachers and other employees to the importance of identifying students in a school who have special educational needs.

The Minister should agree with the merits of raising awareness in this regard. Such students might well be adults given that many community schools and colleges are providing courses for adults, for example, a blind person who joins a day school. Nothing is wrong with that and there should be great merit in a board of management ensuring that teachers and other employees are aware of the importance of identifying such students and their needs.

The amendment is sensible and I accept it.

Amendment agreed to.

I move amendment No. 310:

In page 17, subsection (1)(f), line 6, after “disabilities” to insert “and special educational needs”.

This amendment is similar to the previous one. The Bill throughout uses the word "disabilities", the meaning of which we have had differences of opinion on, although that is another debate. However, the Minister has also included from time to time in the Bill the phrases "special educational needs" and "students with special educational needs". While there will, in many instances, be students in schools who have disabilities as defined, there are also students with special educational needs apart from disabilities.

With regard to an earlier part of the Bill, the Minister acknowledged this point when his amendment of section 3 included people with specific learning difficulties — that phrase may not be precisely correct but that was the Minister's intention and we agreed to that. This amendment seeks to make students aware that while there are people with disabilities, there are also those who may not have disabilities, as such, but have special educational needs, as the Minister acknowledged in his earlier amendment.

The amendment seeks to widen the Bill in this area. We have discussed conditions which people may suffer from time to time, such as the serious issue of depression. In schools in particular, if a person is depressed the lack of awareness of peers in the classroom could lead to that person being singled out as different, and could lead to bullying. It is important for people with special educational needs — I include depression in that — that students in a school are aware of such needs.

One could go on to talk about other hidden disabilities such as dyslexia, dyspraxia, ADD, ADHD, autism and so on, in regard of which there is, strictly speaking, no impairment visible to others yet there is a special educational need. This amendment widens, assists and helps the Bill and does not impede it in any way. I ask the Minister to consider it positively.

We discussed this issue before and I agreed to consider again the definitions used in the Bill. The earlier of point of disagreement was that if we simply referred to special educational needs, anything could be included, even that a person was from a poorer socio-economic background. I will consider this as part of the review of the definition of terms. As the Deputy points out, we are discussing the raising of awareness. If there is no reference to a specific disability, it would not make a huge difference and we should sensitise parents to as many conditions as possible. I will take this into consideration when we look at the definition again.

Amendment, by leave, withdrawn.

I move amendment No. 311:

In page 17, between lines 9 and 10, to insert the following subsection:

"(3) Any person (other than a school) who or which provides education to persons with an educational disability, being a person funded in whole or in part from moneys provided by the Oireachtas, shall provide to the Council such information as the Council may from time to time reasonably request for the performance by it of its functions.".

This amendment addresses the current reality that publicly funded special education provision may be made in a variety of locations other than schools. The amendment simply requires that all publicly funded providers must provide the council with the information it needs. The Bill attempts to ensure that research is one of the council's functions. The best way to get the best research is to have the best available and most up-to-date information. I want to ensure the council will be able to get such information from schools and other publicly funded units.

One of the constant difficulties with legislation is that, because of data protection issues, while councils, Departments or otherwise may get information, unless the purpose of the information is clearly spelt out, difficulties often arise with the data protection commissioner regarding the use of the information. I must check the Bill again, therefore, and a clause or clauses may need to be inserted in regard to that issue.

It is important that the information which becomes available can be used for the betterment of children with disabilities and with special needs, in particular special educational needs. However, this amendment seeks simply to enable the council to obtain information and to place an obligation on publicly funded bodies to provide that information to the council.

Is it envisaged that this amendment refers to parents of children being educated at home? Would they also be obliged by law to provide information?

Does the Minister see a difficulty?

I do not see a difficulty because we can only get the information if they are being funded in whole or in part by moneys provided by the Oireachtas. There is an accountability issue there. In general, we are trying to ensure we have a complete picture on how effective programmes are. That is, more or less, what it is for, but it was felt it would be necessary to get information and ensure there was the backing of law to do so.

To tease it out further — I hate to be too picky — if parents did not want to provide information they felt was sensitive, personal or otherwise, this amendment states they "shall provide". I take it they would be in breach of the law and subject to some type of sanction. As a follow on to that, if a body or a person, other than a school, decided not to provide information, what sanctions are there to ensure it would?

I am not sure we have gone down the route of sanctions, although it is probably one of the failings in much education legislation that there are no sanctions when people do not comply with things they have agreed to do. To my knowledge, no sanction has been outlined. An obligation is placed on people and, I presume, they would be in breach of their duty of care in some cases because the information may be needed to try to improve the services to the child. I do not see it as being a serious issue but it is meant to try to ensure the council has the maximum amount of information on a special unit, home tuition, children in mainstream schools or otherwise to see what is the most effective way of helping children. I do not anticipate serious problems but a legal obligation is imposed on people to return information to the council so it can discharge its function.

Another item the Minister might consider in his amendment is that there is no time limit attached. It does not state the timeframe within which this information should be provided. The council could request information from a body, or a person, which could decide to sit on the request. There is no sanction and there is no timeframe within which information should be provided. When dealing with children with special educational needs, time could very well be of the essence. The Minister might consider amending his amendment on Report Stage to include a timeframe.

Perhaps the Minister will look again at what happens if a body or person decides not to co-operate, particularly if the body or person is trying to hide something. Suppose the body, or the person, omitted to provide a service in the past or something happened under its watch which was pertinent, the body or the person could decide not to make this information available and there is nothing the council could do about it. The Minister knows well that information from institutions of the State has in the past been hidden and that it is difficult to come by it. Incidences could occur which could be important, especially where children with disabilities are concerned, and we need to ensure this information is made available and if it is not, somebody should have the authority to get it. I fully agree with the first part of the Minister's amendment but it needs to be strengthened and to include a timeframe.

I will take those points on board.

Amendment agreed to.

Amendments Nos. 312 and 340 may be taken together by agreement.

I move amendment No. 312.

In page 17, between lines 9 and 10, to insert the following subsection:

"(3) The Minister shall consider directing that all schools appoint a teacher who shall, under the direction of the principal and in liaison with the special educational needs organiser, assist in the operation of this section and the Minister shall also consider organising appropriate training and support for this teacher and for other teachers, as required, in order to allow the proper operation of this Act.".

The Minister's amendment relates to the first part of mine, so I accept that. The second part goes back to an issue we discussed last week concerning the training of teachers. I know there is ongoing inservice training but I spoke to a second level teacher on Monday who worked as a learning support teacher — that was not the title when she was in the job — but she left because she did not believe she had sufficient training to cope with the job. I know the Minister is in negotiation with three of the teacher training colleges on mainstreaming the courses rather than having them as optional modules. Perhaps the Minister will confirm that. This amendment should be accepted to ensure better provision of training, both ongoing and in the initial stages, for teachers in this area.

I welcome the Minister's amendment which is close to that which Deputy Enright and I tabled. The delegation or appointment of teacher by the principal of a school who is see to be the person responsible for and has the expertise to assist people who are disabled is important. As far as training is concerned, I bring to the Minister attention that most colleges have modules dealing with disabilities and special educational needs, but it appears attendance at these modules is, in many instances, small and that many third level students opt not to attend at all. I do not know why, but that is the information I have.

It might be necessary for the Minister to ensure training for all teachers in special educational needs, especially where people with disabilities are concerned, and to hold discussions with the training colleges with a view to making such modules mandatory. Perhaps he will look at this issue and carry out some research into it. Lecturers have told me that the number of students who attend these modules is small.

When we say "appropriate training", we do not just mean an inservice day. If one is to deal with the whole range of special educational needs and disabilities, that requires more than an inservice day, which often ends up as a couple of extended coffee breaks with a talk in between. We need to look seriously at this issue and to talk about some type of sabbatical for teachers in the long term so they can study this area. Masters degrees in special educational needs are being offered by some of the colleges, which is welcome.

I support the Minister's and the Fine Gael amendments. There are a number of aspects to this issue but the amendments accept, to some extent, the problems principals have in terms of their workload.

Many of us have received delegations from the INTO — I think they have visited most Deputies at this stage — and one of the points raised with me was the question of having a post with responsibility for special needs. When one says "post with responsibility", that inevitably implies extra remuneration and that is an issue which would have to be considered. However, having a specific person in the school, whose job it would be to work in this area, would be helpful. These amendments give that possibility to the principal of a school.

On the training aspect, I fully support what has been said by Deputies Stanton and Enright. One of my amendments, which has been disallowed, suggests that the council should have a role in ensuring training and awareness. This is important because if a child does not have a teacher who is trained in and has an awareness of this area, he or she may suffer. It is important there are no gaps in the net in regard to awareness and training. That should be achieved in whatever way possible, whether it is through the provision of compulsory modules in teacher training colleges or ongoing training for teachers who are already in service.

This is an important matter which affects many children throughout the country. For families with children with disabilities, it is crucial that there is no failure to identify their needs and ensure that they are properly catered for in schools.

I welcome the contributions that have been made on this aspect of the Bill. I do not believe that we can overestimate the importance of adequate and proper training for the teachers in question. I support the proposal that the training offered in connection with the higher diploma education — I am sure that is what Deputy Stanton meant — and that in the primary school teacher training colleges would be mandatory. The aims and objectives of the Bill will not be achieved if provision is not made in training programmes at primary and second level. Proper funding must be put in place for teachers who undertake this work at weekends and other times. I am aware of teachers who have undertaken resource training in Dublin whose expenses are not adequate to pay for their bed and breakfast accommodation. The Department must provide funding in order that the aspirations in the Bill can be achieved.

On the question of delegation of duties and arising from the point made by Deputy O'Sullivan, in many schools there are people with posts of responsibility. Under these amendments it seems that the potentially onerous position of dealing with special needs could be delegated to a teacher who does not hold a post of responsibility. It would be better in some respects if it was delegated to somebody who holds a post of responsibility. In some schools there are posts of responsibility, the holders of which are not required to fulfil particularly onerous tasks. The position of dealing with special needs could potentially be onerous and might be delegated to a teacher who is not receiving remuneration for such duties.

I take a totally opposite view about posts of responsibility. It is not a matter of money. If we start naming individual teachers and stating that they have the posts of responsibility for special needs, there is a grave danger that the kind of spirit that imbues this Bill and that we want to imbue the education system, under which people with disabilities will be seen as normal pupils in their schools, might be lost. I refer to Deputy Stanton's point about raising awareness and making people sensitive to the needs of young people with disabilities in schools. I do not believe the position has changed since I left the system. In my experience, once a post of responsibility is awarded to somebody, no one else wants anything to do with it. People take the opinion that if someone else is being paid for it, it is their job. From that point of view, I do not agree with creating a post of responsibility in this area.

I agree, however, with trying to ensure that people take responsibility in respect of this matter. The principle behind both amendments is the same. The only difference between them is the provision to direct as Deputy Enright outlines in amendment No. 312. My amendment allows a principal to delegate rather than direct, which is the proper role for a principal, as the educational leader of a school, to take. However, I agree with Deputies on all sides who said that there should be a spirit of proactive co-operation between principals, teachers, special needs organisers and school communities in general. I have sufficient faith in the personnel operating the education system to know that this would happen in any event. However, we felt it would be good to state matters explicitly and, in particular, the point about delegation.

Principals have spoken about all of the responsibility being placed on their shoulders. We have tried to lighten that burden as much as possible in the Bill. In addition and particularly in primary schools, children with special needs can be found anywhere in a school. A principal may be an administrative principal, etc. so it makes sense that he or she can say to the teacher of the child with special needs in his or her class that he or she is delegating a particular function. That does not mean that the principal will transfer all responsibility. However, day to day responsibility will be conferred on the teacher.

The points Deputies made about teacher training, etc. are extremely important. I was asked about the rate of uptake and Deputy Stanton stated that it might be very low. I am not sure whether he is correct. It is important that every teacher should have some training in this particular area. Some of the members of the council raised this matter when I met them on Monday night last. One of the functions of the council is to advise me in respect of that area. From the conversations we had, that may be one of the things the council does sooner rather than later. I will listen carefully to the views of the members of the council.

I do not want to pre-empt what the council might recommend. However, as Deputy O'Sullivan said, there is a case to be made to put in place a compulsory module in teacher training programmes rather than leaving matters on an optional basis because there are children with disabilities in all our schools. Such training would give teachers the confidence to state that they know something about the area and that they will not be totally at a loss if a child with a disability or one with special needs comes to their school. There is a strong case for accepting the suggestions made by the Deputies. The positionvis-à-vis second level is not as clear-cut because training for those who take the higher diploma is subject-based. However, I will give consideration to the matter and discuss it with the colleges. I will also ask the council to enter discussions with the colleges about it.

The Department is attempting to reorganise. I am of the opinion that there is too much emphasis on inservice training per subject, while not enough is placed on the professional development of teachers, teaching methods, etc. This is an area to which consideration must be given. It would be my desire that we move away from the notion of having a plethora of inservice courses. We should use our education centres to provide the kind of training that would help address some of the problems to which Deputies referred. I do not want to open the debate on this matter, but I am aware that some people have great difficulty with the concept of distance learning, etc. However, there are many areas in respect of which education centres could be used to bring people together, but they could also be used to reach out to teachers.

As already stated, the Department is being reorganised internally in light of the CMOD report and the response from the teachers in charge of education centres. I am conscious of including training. My amendment is general and states, "special educational needs organisers shall give all such advice and assistance as is reasonable." That may involve directing people to particular courses and the council may suggest courses that should be provided and so on. I wish this provision to be general to ensure maximum flexibility. Amendment No. 340 encompasses the spirit of amendment No. 312 and what is intended by it.

The first part of the Minister's amendment is an improvement on ours and that is good. With regard to the second part, will he consider putting the onus on the special needs organiser to also give advice and assistance to the children and their parents, who are the most important people? While this is addressed in section 17, will he consider the provision of assistance and advice to parents? I agree with the Minister regarding the need to re-examine training for teachers, particularly teachers who are in schools and feel at a loss when a child with a disability enters the classroom. The school may have a resource teacher who has expertise in dealing with such children and is comfortable to do so but, at second level, the teacher often finds himself or herself at a loss when he or she encounters a child with a special educational need or a behavioural difficulty. There is a significant need for support and I welcome the Minister's comments in this regard. I look forward, sooner rather than later, to concrete proposals and action.

I refer to the Minister's comments on training. When the legislation is passed, modules will be formulated to provide the required training and that will not be an issue going forward. However, I am more concerned about the transition for existing teachers. Many of them have been teaching for 20 years or more and they have never had a child with special needs in their classroom but, suddenly, they will have a second teacher in the room with them. That is a significant change. I am less concerned about new teachers because they will have been trained to expect such scenarios but the transition will cause difficulty.

Currently, a variety of assistants are employed by schools to deal with children with special needs. Their training and experience is varied. Those who have taken on this role are involved and into it and they are willing to improve their skills by attending courses and so on. Many are currently doing this at their own expense outside school hours. The Minister will have to examine this issue as he tries to advance the education of children with special needs. The transition for existing teachers is an issue. Many special needs teachers go beyond what is required of them and they are enthusiastic about, interested in, and committed to the job. They have attended a variety of courses at their own expense outside of school hours and this issue must be addressed sooner rather than later because I envisage significant problems during the transition.

That is what I am trying to achieve regarding the use of the education centres for training. Primary schools can be addressed by making the required module compulsory from a specified date. Most schools have come in contact with children with special needs and they have been adapting and so on. I accept it is a greater problem at second level. That is why I referred to the reorganisation of training and focusing more on the use of education centres rather than inservice training.

A number of courses are available for special needs assistants. The provision is patchy. The Department has assisted the provision of courses in a number of locations and consistency is needed. A number of institutes of technology have made proposals to provide such courses generally during the summer, which would facilitate many of the special needs assistants. That would be useful because the preparation of the assistants is varied. In many cases people who had children with special needs got involved to look after the children but continued their work after their children had left school.

I accept the Minister's amendment but training should be provided for explicitly in the section. Under section 18(1)(i) the council has a function advising on the best practice in respect of the education of adults with disabilities. This could imply provision for the training of people who assist in the education of adults with disabilities. The Minister's amendment is not that clear. Perhaps he will consider amending the wording in his amendment to incorporate the wording of my amendment. We can return to this on Report Stage.

The amendments address the duty of schools and I do not wish to mix this with the role of parents. Section 18 is relevant——

Yes, but a function is not delegated to the council in terms of teacher training.

If certain amendments are accepted, the council will have a role.

Amendment, by leave, withdrawn.
Section 13, as amended, agreed to.
SECTION 14.

Amendments Nos. 316 to 319, inclusive, are related to amendment No. 313 and amendment No. 314 is an alternative. All may be discussed together by agreement.

I move amendment No. 313:

In page 17, subsection (1), lines 12 and 13, to delete ", from the child's attaining such age as the principal or organiser considers appropriate,".

The words I seek to delete are superfluous in terms of what the legislation is trying to achieve. We should look to the eventual transition at all times when preparing and implementing education plans rather than picking a certain point. The deletion of these words would mean that at all times we are examining where the child is going rather than suddenly picking an age such as 16 or 17 and deciding to examine the child's future needs then.

The decision on planning should begin with the future educational needs of the child, but this is left entirely to the principal and the special educational needs organiser. Parents are not referred to in subsection (1). Parents are referred to in subsection (2). It is necessary for them to be involved in the decision-making process, but they are not allowed to make the decisions themselves. They are merely consulted by the principal. The key issue is that they have no power to initiate the planning process as to the future of their children. It must be recognised that parents spend far more time with their children, therefore, they have a greater understanding of their potential, capacity and desire to learn than a principal or organiser.

As the legislation currently reads, if parents wish to start planning for their children's continued education, they can only approach the principal and organiser and hope they will pay attention. In other words, they are effectively disempowered. I would like the Minister to accept the amendment in the spirit in which it is intended, and empower parents in regard to the education of their children.

This section does not plan for the future educational needs of children. It brings us back to the issue of the name of the Bill, that is, the Education for Persons with Disabilities Bill but, in fact, it deals primarily with people under the age of 18. There is an opportunity under this section to address the issue of life-long learning and over 18 year olds. My amendment proposes to assert that principle. I suggest that we should include the words, "and to the principal that a student should not be required, simply by virtue of reaching a particular age, to cease to avail of educational services". One of the major issues is that while the Bill is supposed to be about persons with disabilities, it is actually about children and people under the age of 18.

The section refers to planning for the future. We feel that should be stronger. If the amendment is accepted, it will state the principle that just because a child has a disability, it does not mean he or she should not continue his or her education beyond the age of 18.

Amendment No. 316 refers to further or third level education. We are seeking to ensure that all kinds of education are included. I will withdraw the amendment because it is superfluous.

Amendment No. 317 seeks to insert the words "or employment" after "training". In preparing the education plan, we must bear in mind that the hope and intention is that the barriers society has put in place will be removed and supports will be put in place for people with disabilities. Ultimately, our fellow citizens, even if they have certain impairments, should be able to take up gainful employment and become independent in their own right, as many disabled people are currently doing. It is important when preparing the plan that we should not just look at educational and training needs, but we should also look at employment in the future, which is the ultimate goal of education and training. It would be useful to include this requirement, and, if not, it should be included somewhere else.

Amendment No. 318 proposes to delete the words "on becoming an adult". We are talking about preparing an educational plan, which might occur in primary school. The principal of that school should have regard to the provision which will need to be made to assist the child to continue his or her education in secondary school when the child is not an adult. I wonder if the words "on becoming an adult" are required. What I am expressing is already included in the Bill. As Deputy O'Sullivan said, it is important to take account of what happens post-18 years. I am not convinced that the safeguards are in place. The disability Bill has not yet been published. It would be useful to see what is in the Bill. We could examine both Bills at this stage. I do not know why this has not happened. Has the fact that the Committee Stage of this Bill is not over anything to do with the fact that the other Bill has not been published?

The purpose of this section is to provide planning for a child's education and training as an adult, if necessary. It is the Education for Persons with Disabilities Bill, which seeks to educate and train young people for future employment, but it is not necessary to state this. The age at which this planning would take place will differ for each child, which is why it is left to the principal and organisers to decide the manner and context of the plan for the child or young person.

On Deputy Ferris's point, if one takes any section in total isolation from previous sections, one can interpret that parents are being excluded or are not being empowered. This section must be seen in the context of the previous sections relating to educational plans and so on, where parents are fully involved. The principle of the Deputy's point is fully accepted and very much enshrined in the Bill. Parents can seek a review for their child. They have a right to appeal if they are not satisfied with the decision reached. The laudable principle the Deputy seeks is included in the legislation. It is not restated here because it was stated in sections 7 and 8. I assure the Deputy that this matter is taken care of. Amendment No. 314 is not necessary because the spirit and principle of the amendment is already included in the Bill.

I agree with Deputy Stanton that the amendment which refers to further and third level education does not add anything to the Bill. Education is education, and it can include these requirements.

I do not accept the premise of amendment No. 319. There is no suggestion that a person's education should cease at a particular age. The entire thrust of Government policy — I do think it would change regardless of who is in Government — is towards life-long learning and education. This is a real issue for people with disabilities, as it is for people without disabilities. The Bill seeks to provide a very elaborate structure for a particular purpose, which is the delivery of the constitutional right to education up to the age of 18. It does not go any further. The disability Bill, as Deputy Stanton said, will deal with that point. The whole issue of adult education and training will be dealt with in that Bill, which will be published shortly. The point the Deputies are trying to achieve is contained in the Bill, either in this or previous sections.

It is curious that the Minister mentions education or training and omits employment. For many years there has been a view that lifelong training is appropriate for people with special educational needs, and particularly for people who are disabled, and that employment is not appropriate for them. It would be extremely useful and important to include the statement that an education plan must provide for employment.

People who are disabled should be helped in every way to gain employment. By omitting employment and by emphasising education or training the Minister is making a statement. It has been accepted for many years that people who are disabled will end up in workshops. In many instances, no effort is made to provide gainful, proper and independent employment for them. It is important that we include employment in this section. I ask the Minister to consider this proposal seriously. It is fundamental to the rights about which the Minister spoke.

The Order of Business is about to start and we do not have time to dispose of this group of amendments. I propose that the select committee adjourns and deals with these amendments when it resumes.

Sitting suspended at 10.35 a.m. and resumed at 12.40 p.m.
Deputy O'Sullivan took the Chair.

We are now in public session. Unfortunately, the Chairman has been called away unavoidably. I am the Vice-Chairman, as everybody knows, but I have tabled amendments to the Bill and, therefore, it seems inappropriate that I should continue to chair the meeting. I propose that Deputy Andrews take the Chair. Is that agreed? Agreed.

Deputy Andrews took the Chair.

We were discussing amendment No. 313, in the name of Deputy Enright and Deputy Stanton. Does anyone have anything to add?

It was pointed out that the review of the education plan would finish with training and that it would consider future education and training, but not employment. It is important that we include a reference to employment. It is important that when preparing and reviewing the plan people will give consideration to employment. Otherwise the danger, as we have said before, is that training could be seen as the end of the road. Unfortunately, for many disabled people, training is the end of the road. There is an opportunity for the Minister, by accepting this amendment, to signal the importance of employment so that it will be considered in preparing an education plan. Education is to prepare people for life and for most people employment is an important part of life. The preparation of education plans dealing only with education and further training is something we should try to avoid.

This Bill is concerned with the education of persons with disabilities so education plans are in order. The purpose of education, as the Deputy said, is to prepare people for further education, training or employment. I am not of a mind to accept his proposal because it will end up with the education system being obliged to provide employment plans for young people. In considering this Bill, our duty is to deal with the education of persons with disabilities. The broader disability Bill will deal with people who come through the education system from the point of view of training, employment or whatever is most suitable for them. It would not be appropriate to insert a reference to employment into the Bill. We are dealing strictly with education or training.

Amendment, by leave, withdrawn.
Amendments Nos. 314 to 316, inclusive, not moved.

I move amendment No. 317:

In page 17, subsection (1), line 15, after "training" to insert "or employment".

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

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

Níl

  • Andrews, Barry.
  • Brady, Martin.
  • Curran, John.
  • Dempsey, Noel.
  • Hoctor, Máire.
  • McEllistrim, Thomas.
  • Mulcahy, Michael.
Amendment declared lost.
Amendments Nos. 318 to 323, inclusive, not moved.

I move amendment No. 324:

In page 17, subsection (3), lines 25 and 26, to delete "and who within the following 12 months will reach the age of 18 years".

This amendment could have the opposite effect to that desired. I understand what the Deputy wants but some children make educational progress at a slower pace than others, so subsection (3) is important in that it provides that, where the council is preparing or reviewing the education plan of a child who will turn 18 within the following year, an assessment will be made on how the young person has achieved his or her goals. If he or she has not achieved what has been set out, the effect on the child's development must also be assessed. That might mean putting appropriate plans and measures in place to address those defects.

It is deliberately targeted at children who are nearly 18 years old and we should not put a timetable on it. In some cases it might be appropriate to do that three months before a person is 18 and in other cases it could be 18 months before he or she is 18. The aim of the amendment is achieved in a more suitable way as the Bill stands. It is more flexible.

It is more flexible if "and who within the following 12 months reached the age of 18 years" is removed. I accept the Minister's point about those who are close to 18 years of age, but in preparing or carrying out a review of an education plan, it would be a good idea for the council to carry out an assessment of what is outlined in paragraphs (a) and (b) and my proposed paragraph (c) that applies to a review at any age. It is good practice to see if the goals have been achieved or the reasons for any failure. It would be a good idea as well to instruct the council to adhere to these principles in all reviews. It would then take cognisance of when the student is close to 18 years of age.

In some cases children leave a school well before they turn 18. This section involves planning for future education needs. If a child moves on at any stage, those needs must be taken into account and the principles set out in the subsection should be followed anyway when reviewing or preparing a plan. I see no reason for the inclusion of the phrase "and who within the following 12 months reached the age of 18 years". I recognise the need for vigilance when people reach school-leaving age or leave their school, but that could happen at any time between 16 and 18. It is not useful to flag that age because too much attention could be focused on those 12 months to the detriment of what could happen earlier.

As we already know, all plans are subject to ongoing review. The principle behind the section and this part of it is to make it mandatory to have the review as the child approaches 18 years of age so the immediate needs can be addressed and, also, a plan can be put in place after he or she is 18 years of age and the terms of the Bill no longer apply. It is a belt and braces effort to ensure that the plan is not drawn up when the child is 17 years and six months, no further review takes place, the child attains all his or her goals under the plan by the time he or she is 18, and he or she is suddenly out of the system and nothing remains for him or her afterwards.

I discussed this with my officials earlier and I was reminded that the purpose of this section is to cater for a transition. If this is unclear, we will attempt to make it clearer, but it is specifically to ensure that, in the 12 months before a child turns 18, there is a review that specifically focuses on the attainment of goals by the child or determines whether he or she needs to be re-adjusted. The council can then say specifically that the plan is to continue for a further three or four years. The disability Bill would then assume responsibility for the plan once the child turned 18 or left the school system. That is what it is intended to achieve, and contrary to what I said earlier, accepting this amendment would mean this could happen when the child reached the age of 16. By the time he or she reached 18, he or she would have achieved all the goals possible in the education plan and there would be nothing in it for him or her.

I can see the sense of the Minister's proposal and I agree with it, but if someone leaves school at the age of 16, or 16 years and six months, the same provisions should apply. I am concerned that this might in some way prevent that happening. Perhaps the Minister could consider it again with that in mind. After all, 18 is an arbitrary figure, it does not follow that everyone stays in school until the age of 18 and those who leave school earlier probably need more support and help than those who stay until they are 18.

We can examine that. The age of 18 was specifically chosen because the Bill caters for children up to that age. There may be a need to insert another phrase such as "or if the child intends to leave school or the education system earlier".

I would be happy if the wording could be made more specific on Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 325 not moved.

I move amendment No. 326:

In page 17, subsection (3)(a), lines 29 and 30, to delete “for the child were achieved” and substitute “successfully met the special educational needs of the child or student”.

This amendment refocuses the wording as in the earlier argument about being more positive. The paragraph reads: "the extent, if any, to which goals set in any previous such plan or the plan, as the case may be, for the child were achieved" but we want to delete "for the child were achieved" and substitute "successfully met the special education needs of the child or student".

We discussed this previously and I will accept the Deputy's amendment because it is in keeping with our wish to be positive in the Bill, subject to re-examining it to ensure that it hides no pitfalls.

Amendment agreed to.

Amendment No. 327 is out of order.

Amendment No. 327 not moved.

Amendment No. 329 is an alternative to amendment No. 328. We have already discussed amendment No. 329 with amendment No. 321.

I move amendment No. 328:

In page 17, subsection (3)(b), lines 31 and 32, to delete “to meet those goals and the effect any such failure has had on the development of the child,” and substitute the following:

"of any previous plans or programmes to meet the special educational needs of the child or student and the effect that such failure of such plans or programmes has had on these special educational needs, and

(c) the extent, if any, to which the lack of any previous plan or programme has had an effect on the special educational needs of the child or student,”.

Like the previous amendment, this switches the focus from the child to the plan and its effect, and puts a positive slant on the wording.

In this case I will consider a slightly different amendment for Report Stage. On the principle the Deputy is trying to establish, I am happy to re-examine this for an amendment. It is intended to try to express this in positive language.

Amendment, by leave, withdrawn.
Amendment No. 329 not moved.

I move amendment No. 330:

In page 17, subsection (3), between lines 32 and 33, to insert the following:

"(c) the extent to which the person concerned can meaningfully continue to develop his or her abilities through further education,”.

If the counsellor conducts a review before the student reaches the age of 18, one must take into account whether there is the ability to pursue further education meaningfully and to develop his or her abilities, which is in the wording of this amendment. It is not contentious but adds to the outline for the way the Department of Health and Children might care for the student after the age of 18 in the forthcoming disability Bill. Under paragraphs (a) and (b) of section 14(3), if the plans have been achieved, it is important to assess the options for further education, include those in any report and recommend appropriate measures to ensure that this happens, even if it is not within the remit of the Department of Education and Science. Inserting this new paragraph emphasises that the student with disabilities can continue to third level education and that the appropriate plans are being outlined for this. Can the Minister say whether this is contentious or the sort of wording that would add to the inclusiveness of the whole package?

What the Deputy is trying to achieve is already covered in the general education plans in which the goals will be set. We will change the reference to the child's failure and refer instead to the failure of the education plan to help the child. If the Deputy looks, for example, at section 14(2)(b):

take such steps as are necessary as will enable the child to progress as a young adult to the level of education or training that meets his or her wishes or those of his or her parents and that are appropriate to his or her ability.

That is catered for and this deals specifically with the future education needs. The Deputy's suggestion is enshrined in this paragraph which covers it clearly. We will look at the Deputy's wording but the principle that he has outlined is contained and intended to be contained in section 14(2)(b).

I take the Minister's point but I would like him to examine the amendment. The principal and special needs organiser are being asked in paragraphs (a) and (b) to take such steps as are necessary. In terms of a review and assessment, this amendment may help to ascertain what exactly is necessary and, if further education were specifically included in the Bill, it would help identify what might be necessary. I will not press the amendment but I ask the Minister to take it into consideration.

I thank the Deputy and will do as he asks.

Amendment, by leave, withdrawn.
Amendment No. 331 not moved.

Amendments Nos. 332 to 334 inclusive are related and will be taken together by agreement.

I move amendment No. 332:

In page 17, subsection (3), line 33, to delete ", where appropriate,".

The context is "and the plan shall include, where appropriate, measures to address any such effect". We suggest that "where appropriate" should be removed because it might imply that no plans would be made to address difficulties. The subsection already includes the phrase "any such effect" which leaves open the possibility that in some situations nothing needs to be done, but the phrase "where appropriate" seems excessive and restrictive.

In amendment No. 334 I propose in subsection (3), line 34, after "effect" to insert:

including measures involving the student remaining in school notwithstanding his or her having attained the age of 18, or alternatively receiving other educational services after that age.

I would like to see that contained in the Bill. Many young people, especially those with disabilities, may not have achieved whatever they can achieve under the broad heading of primary education by the time they are aged 18. It seems more appropriate in those cases for the person to stay on in the school he or she attends than move out to enter training or whatever other alternatives are offered. In many cases, in a practical sense the parents would much prefer to see the young person stay on and completing what he or she can in the programme. This area has already been subject to legal challenges. However, a provision where the student can stay where he or she is as opposed to moving elsewhere should be retained in this section as it may be the appropriate solution for the young person concerned.

Rather than suggesting that, because the young person is 18 years of age, he or she must move on to work, further education or training, the alternative is included if this amendment is made to the Bill. I would like to see this further option being made available to students. In many cases, it would not be for very long, maybe one more year, but it should be available.

In support of amendment No. 332, in the name of Deputy Crowe, the phrase "where appropriate" at the end of the section displays some nervousness on the part of the Minister for Education and Science. Any measure to address the problem created when the system fails a student is appropriate. This phrase in the legislation implies a time when it is not worth taking steps to alleviate the problems a student may face, especially one about to leave an educational environment with which he or she is familiar.

Does the Bill envisage somebody leaving second level education by the age of 18 years?

The Bill gives effect to the court decisions and the constitutional position on the rights of the child. It gives a legislative base to the right of a young person to receive education at 18 years of age. The thrust of the Bill is that the constitutional right is legally enshrined. The legislation states how this will be achieved up to the age of 18 years. It is not meant that, as soon as a person reaches 18 years, they are thrown out of school. The disability Bill will take up that issue. The reason the age term "0 to 18 years" is used in the Bill is to ensure that the constitutional protection has a legislative base.

Section 14, as it stands, provides for the planning of a child's education and training when he or she becomes an adult. Subsection (3) is aimed at ensuring that the planning process makes an assessment of the extent to which a child has benefited and to ensure they have benefited fully. The assessment also checks to see that the plan has addressed any deficiencies that may arise. The provision is deliberately open-ended because nothing is ruled out in this.

Deputy O'Sullivan's amendment seeks to insert "including measures involving" which is simply adding, and possibly restricting, a statement for the sake of it. It is deliberately left open-ended so that it could be training, in the same school or another one, or to provide for the young person at third level. It is very much up to the planning process to decide on the child's needs as an adult. The disability Bill will take over from then on. All the options are open as the Bill stands and that is why I am reluctant to accept the amendment. I will not argue against saying that "including measures involving the student remaining" is not restrictive. However, why do that when it is better to leave the provision open?

Regarding the term "where appropriate", paragraphs (a) and (b) of section 14(3) are for preparing the plan, part of which is checking the goals achieved and any failure to meet those goals. Let us suppose, for the sake of argument, that the plan is working well with no failure to reach goals and the young person has achieved everything he or she needed to. In such a case, the plan would not need to address such effects. That is the only reason the phrase is included. It would not be an arbitrary decision. If there is a deficiency, it must be met, the plan must be altered and so on. If there is not and the plan is successful, it is not appropriate to insert measures to address matters that have not happened.

I do not know whether legally it can be switched around to make it clearer. One possibility is that, at lines 31 to 33, inclusive, we clarify it by stating "where the plan there has been a failure" or words to that effect. However, I do not like that wording. If committee members are happy with the thrust of that, "appropriate" can be replaced with some wording that reflects that the plan has not met the goals.

We should not use the word "failure".

I agree. Deputy Stanton started on this one; let us keep it. If the Deputy withdraws the amendment, we will amend the wording on Report Stage.

Amendment No. 333, which is grouped with amendment No. 332, depends on the previous amendment being accepted, which the Minister said he would examine. We may withdraw that based on what he has said.

I hate annoying the Minister but, on amendment No. 334, I put this scenario to him. A child with special needs reaches the age of 18 years in June. The school has already been designated by the council to accept the child. The following August, the parents receive a letter from the school stating that it can no longer cater for the child's needs. My reading is that there is no provision in the Bill to ensure that the child can stay on in the school. The constitutional rights of the child are protected by the Bill, but there is no choice because the school has been mandated.

What happens if a school did not want to cater for a child in the first place and, during the summer, discreetly sent a letter to the parents claiming that it could no longer cater for the child's needs because other children were making demands on resources? This can and does happen. The Minister said the disability Bill, which we still have not seen, may cater for these eventualities. I am concerned that it may not. I know the Minister has drawn a line at the age of 18, but, as Deputies, we may all at some stage be asked to assist people who are over 18, have still have not achieved the leaving certificate, for example, and are told that a school can unfortunately no longer care for their needs. This happens in summer periods when no appeals mechanism is available. Can the Minister guarantee that the disability Bill will provide protection? Deputy O'Sullivan's amendment is otherwise very important. This happens in the real world in which we live. This is what will happen in future to constituents, friends and neighbours of all those present. Cases may be limited, but one is too many.

I want to come back to what the Minister said about amendment No. 332. Deputy Stanton has explained the situation quite well. Let us consider, for example, a child with a physical disability who has perhaps gone through transition year. In many cases, even children with no disabilities may be 19 when sitting the leaving certificate. In the case of physical disability, where it is simply an age factor in terms of how many years the child has gone through school, and where those with disabilities may be later starting or getting through the process, there will be many individual cases where a principal might be tempted to use this provision to suggest that the child must leave a school at the age of 18.

We must ensure that the best interests of the child are paramount in all this and that we do not give hostages to fortune in the wording of the Bill. That is why I would have liked to have seen my amendment included because it caters for such a situation. There will be a limited number of genuine situations where, despite the child being older, the school is still the appropriate place for him or her. We are probably talking about a second level school in such a situation.

I do not know how the Minister should tighten up the situation, but there is a gap here somewhere. As a result of transition year and so on, it is now quite normal for people to be over 18 when sitting the leaving certificate. Children with disabilities also now tend to be a class behind, because they are often kept back as a result of the disability not being readily identified. One could have an eight year old child with special needs in a class where the others might be aged seven. That is my experience based on what I have seen.

I fully recognise that this cannot be open-ended and that one cannot have a 25-year-old in a classroom, but I would like to see a more rigid guarantee whereby someone of 18 or 19 who has gone through the system would be guaranteed to finish out the course if he or she were following year on year, cycle on cycle. I accept it is not appropriate that someone of 25 should be in a class of 16 year olds.

I do not mean to be smart in saying that many hundreds of students every year reach the age of 18 as they go into their leaving certificate year or even the senior cycle, and they are not thrown out because of not having a constitutional right to education after the age of 18. This section is especially flexible because, where someone has begun a certain course of education and has a specific education plan drawn up for him or her, especially in the run-up to the year under discussion, namely, the 12 months before the age of 18, the plan will be put in place to cater not just for that year but right into that young person's future. It may be most appropriate that the child or young person stays within the school, moves to training, or whatever. That decision would be left to the school, the council, the parents; in other words, those who know the child best. We are trying to ensure this is as flexible as possible and that we are not being prescriptive in any way. It could mean that the young person would stay in a specific education programme for one, two or three years.

Is a school obliged to provide for that?

No, nor for anyone else, but schools do so in effect. I accept that it would be extremely difficult for a school, where an education plan for the future has been drawn up for a young person, to say suddenly that it will do nothing about it. The disability Bill will deal with people over 18 who are still in an education environment. Between the two Bills, people will certainly be catered for. I respect what the Deputies are trying to do here and I know they intend well, but the provision as it stands is best left alone because it is open-ended and flexible. It allows for that to which Deputy O'Sullivan referred to be part of the solution in the ongoing education of the child. I ask the Deputies to accept the provision as being stronger without amendments.

The Minister has just confirmed that there is nothing to stop a school from writing to a family in the summer months to say that it can no longer accept a child or young person into the school because it cannot cater for him or her. The school does not even have to give a reason. The law on discrimination is in place, but the school can simply say it will not accept a child in September and give no reason. There is no protection. The Minister said that, in a minority of cases, this is possible.

We still have not seen the other Bill, so we are not sure exactly what it contains. The Minister has probably seen it, but we have not. We are working in the dark. I know we are tied to the age of 18, but this is a major concern for many people whose children will be slower in school because of developmental delays or whatever, and who will, as Deputy Curran said, sit the leaving certificate when they are over 18. Such people may receive a letter in the summer from their school to say it cannot accept the student the following September. This is the issue.

There are many factors which could stop a school from taking such action, not least public opinion. The school must also have participated in drawing up the young person's education plan in his or her 18th year as they proceed towards the end of that year. There is anti-discrimination legislation on the books as well, and it would be very easy to prove that a pupil being catered for in a school up to the age of 18 did not suddenly become impossible to cater for on attaining the age of 18.

Furthermore, under section 29 of the Education Act, a student can appeal to the Department a proposed exclusion from a school. The school would have to give its reasons either to the equality officer under the Equality Act or to the Department of Education and Science, so there is a safeguard to ensure that someone in those circumstances would not be unfairly treated. There are a considerable number of safeguards.

On the basis that the Minister will return on the issue, we will withdraw the amendment.

Amendment, by leave, withdrawn.
Amendment No. 333 not moved.

I move amendment No. 334:

In page 17, subsection (3), line 34, after"effect" to insert "including measures involving the student remaining in school notwithstanding his or her having attained the age of 18, or alternatively receiving other educational services after that age".

I will withdraw amendment No. 334 and resubmit it on Report Stage depending on the Disability Bill.

Amendment, by leave, withdrawn

Amendment No. 335 is out of order.

Amendment No. 335 not moved.

As Deputy Gogarty is not present, amendment No. 336 cannot be moved.

Amendment No. 336 not moved.

I move amendment No. 337:

In page 17, between lines 34 and 35, to insert the following subsection:

"(4) Where the planning for future educational needs contemplated by this section has not been carried out in relation to a person prior to his or her having attained the age of 18 years, including a case where the person attained the age of 18 years prior to the passing of this Act, the Council shall, on request being made in that behalf, carry out the planning for future education needs of the person with special educational needs concerned in accordance with this section.".

This is concerned with where a child has reached the age of 18 before the Act comes into play. As the section stands, when a person turns 17, the education plan must address the question of what happens when he or she turns 18. However, that does not deal with the situation of a person already over 18 or a person who, for whatever reason, has not been assessed under the Bill in time. It addresses people who are at that point around the time the Bill is implemented.

Essentially, anyone who has attained the age of 18 by the time the Bill is enacted will be dealt with under the disability Bill. It would be difficult to backdate the legislation or cater for cases that have gone through the system. It would be better to leave that to the disability Bill rather than deal with it in this legislation.

On the same principle as last time, I will withdraw the amendment at this stage.

Amendment, by leave, withdrawn.
Question proposed: "That section 14, as amended, stand part of the Bill."

I have general comments on the section. It was put to me that one must start planning for the future much earlier than a year before the child finishes school, but that is probably covered under subsection (1), where it says "from the child's attaining such age as the principal or organiser considers appropriate". I therefore assume that section 14(1) probably covers that concern. However, it was expressed to me by a representative of one of the parents' groups that, in their experience, in many cases one must begin planning much earlier than a year before the child leaves.

The Minister will probably refer me to the disability Bill again. A great deal of planning and work will have been done over the under-18 child's lifetime in school. It is important that all that information and experience is passed on when the child turns 18 in whatever he or she does thereafter. I wanted to be sure that all that information from the council and so on would be available to be passed on so that there is continuity regarding the child's future. I presume that the Minister will say that it will be covered in the disability Bill.

Section 14(1) states:

In preparing or reviewing an education plan, the principal of the relevant school or relevant special educational needs organiser shall, from the child's attaining such age as the principal or organiser considers appropriate, have regard to the provision which will need to be made to assist the child to continue his or her education or training on becoming an adult.

I think that we should add the words "or employment" after "training". That is just as important. What does the Minister have in mind when he says "have regard to the provision which will need to be made to assist the child"? What exactly does he envisage being included in the plan? What provision is he talking about? Perhaps he might give examples of that provision that would have to be made to assist the child to continue his or her education or training.

It would be helpful if we knew exactly what that provision was at that time. People will have to read this section and work out exactly that means. It would be helpful if the Minister could spell it out clearly. We have gone through it, but we have not had any detailed examples of the Minister's thinking. What is to prevent that provision from also including employment? One is doing something under this provision with a view to the future. Exactly what kinds of things are we talking about?

I will deal first with Deputy O'Sullivan's points. One concerned the need to plan far in advance in some cases. That is true, but all we are doing in this section is ensuring that, whatever plan is in place, at least another examination takes place in the last 12 months before the child turns 18. It is building on something rather than replacing it. The Deputy's point is good and refers to what I said.

I am not sure if we have a direct provision in the Act to allow the passing on of information; I do not think so. That is a scenario where we could run into difficulty with the Data Protection Commissioner. In many respects, for pre-school children aged up to four, it is the Department of Health and Children that has the main responsibility. From four to 18, it is we who have that responsibility, after which it reverts to the health board. Perhaps we need to make provision for information to be passed from the Department of Health and Children to the Department of Education and Science and back again so that whatever data are collected can be used and passed on for the assistance of the child. I will consider that good example, and I thank the Deputy for raising it.

On the question of what provisions we are talking about in the Bill, the answer is "none", precisely because of what I said earlier. I want to leave it as open as possible. However, it could be the continuation of the child in the school that he or she is in. It could be training or workshops if that were most appropriate. Those are the kinds of provisions about which we were talking based, once again, on the information that we have, the assessments that are carried out, and the combined wisdom of the SENO, the school, the parents, and the council. Appropriate provision will vary; it is very individual. It may be continuation in a mainstream school. It may be someone finishing his or her leaving or junior certificate. It may be trying to achieve certain goals within an education plan and leaving the child either in a special unit or a special school until those have been achieved. It could be any or all of those things.

Section 14(1) states:

In preparing or reviewing an education plan, the principal of the relevant school or relevant special educational needs organiser shall, from the child's attaining such age as the principal or organiser considers appropriate, have regard to the provision which will need to be made to assist the child to continue his or her education or training on becoming an adult.

We are therefore talking about provisions to assist the child to continue education or training after the age of 18, to use the Minister's definition. It is not right now but after the age of 18. If the child moves on from the school to a training workshop — the Minister has ruled out employment — the child has left the school, but the school is obliged under the proposed law to implement provisions to assist him or her in the workshop. That is how I read it. How is that to be done? What examples can the Minister give us? The phrase "on becoming an adult" is what is important here.

I understand that. However, the phrase "have regard to the provision which will need to be made" concerns what is necessary regarding education and training in the education plan for the child to continue in the current education system or go into a workshop or training. It is for those over 18. It is only a statement of what will need to be done to assist the child. It is more focused on the young people, as we should term them, what they will need, and how those needs might be met. Therefore these are the provisions we need to put in place for the child. It does not mean the school or the council has to provide that. It would be more appropriate probably for the health board to do so at that stage. One is just stating the provisions that are needed, not necessarily putting them in place.

The Minister has spoken about future education needs in this regard, which I understand. He spoke about training which I take it refers to special workshops or whatever. We are discussing a statement about the future. What is wrong with making a statement for the future on employment? It is the next step. If a person goes into employment he or she will need various things. It is the same if person goes into training, etc.

This is the Education for Persons with Disabilities Bill and the people who will deal with the young person will be teachers, educational psychologists and the members of his or her team. I do not anticipate too many situations where just because someone has reached the age of 18 he or she suddenly has to go into employment or anything else. The education plan provides in effect that in order for a young person to "achieve the following goals, this is what is needed". The principal of the school will not be able to do that. Neither will the special education needs organiser. We are catering here for educational needs up to the age of 18, and perhaps post-18 for some people. The area of employment and so on requires a whole different set of skills that will need to be cultivated. The larger disabilities Bill is more appropriate legislation in which to provide for that.

Question put and agreed to.
NEW SECTION.

I move amendment No. 338:

In page 17, before section 15, to insert the following new section:

"15.—A health board, in the performance of its functions under this Act, shall implement the policies which are formulated, from time to time, by the Minister and by the Minister for Health and Children and which relate to—

(a) education generally, and

(b) the education, in particular, of children, students and adults with special educational needs and with disabilities, and

(c) the provision of support services.”.

Section 15 is the implementation of the relevant education policy by the health boards. We wanted to insert a new section there as worded and which speaks for itself. Perhaps the Minister can give his reaction to it.

Under section 5(4) each assessment of need has to be carried out in accordance with standards set down by a body recognised by the Minister for Health and Children. Amendment No. 133 provided that the recognised body must consult with the Minister for Education and Science. In section 36 of the Bill, in addition, a council can request a health board to take specified actions where it considers this is necessary for the preparation or implementation of an adequate education plan or is more generally necessary to assist the council in carrying out its functions. The thrust of the principles before us is now catered for under section 5(4), with the addition of amendment No. 133, and under section 36. For those reasons the amendment as put forward by the Deputy is not necessary.

The main thrust of that amendment was to break up the three different headings — education, general education and so on — to make it clearer. However, I accept what the Minister has said.

Amendment, by leave, withdrawn.
Section 15 agreed to.
SECTION 16.

I move amendment No. 339:

In page 17, lines 43 and 44, to delete ", so far as practicable,".

The functions should be performed without any caveats or conditions attached. This phrase, "so far as practicable" seems to include an unnecessary caveat that may lead to someone deciding it is not practicable to do something and so it would not be done. Perhaps the Minister would consider deleting that phrase.

Section 13(1)(c) uses the phrase “to the greatest extent practicable”, which might extend the remit of section 16.

I agree with the Deputies that we need to ensure there is as much co-ordination as possible between the various agencies. It will be a key factor in delivering an appropriate education to children with disabilities. It is desirable that there should be as much consistency and complementarity as possible. That is our aim in the Bill. However, it is inevitable that differences can occur in how disparate bodies carry out their activities. That is why while we want people to operate on similar lines as much as possible. It has to be recognised that disparate bodies will do things differently, so the phrase "in so far as practicable" is included. We do not want to be overly prescriptive. We could have a look at the Acting Chairman's suggestion. We did change one before. It is basically to allow for differences between different organisations. I will look at the wording the Acting Chairman suggested. Apart from that, I will not accept the amendment.

If the Minister will look at it, that would be helpful, so I will withdraw the amendment.

Amendment, by leave, withdrawn.
Question proposed: "That section 16 stand part of the Bill."

A constituent of mine, a parent, told me this week that communication between the health board and the Department of Education and Science was very poor. It led to a situation where she found herself in a type of Limbo. We have heard this time and again. The Minister acknowledges it and agrees with it. I welcome anything that can improve that co-ordination. The whole health area is going through major change. The health boards are to be abolished shortly and new regional health executives will be appointed. Will the Minister say, when the health boards are gone who will take up this particular role? Who will be responsible instead of the health boards? Who shall be designated as one of the officers? What kind of a structure does he envisage? I understand there are to be four regional authorities. Will it come from this? Those authorities, I take it, will be much larger than the health boards, and perhaps more impersonal. It will be interesting to see how that will operate. It is important in the context of this Bill.

The Deputy never asks easy questions. We can have a long and philosophical discussion about health boards. I have said publicly that the complaints the Deputy refers to are well founded. In the past there has been a breakdown. Perhaps there has been a certain tendency, from my perspective, to shove responsibility for everything to the Department of Education and Science which has a constitutional obligation to look after the needs of children. At a local level things have not been what they should have been in the past. There was insufficient engagement between the Departments of Health and Children and Education and Science. This has improved considerably during the past two or three years and there is real engagement and a real desire at that level to try to smooth the way as much as possible and ensure co-ordination. When one goes to health board level, an experience we have all had, with children of various special needs who require occupational therapy or speech therapy for their education as much as for their health, the response, to say the least, is not great. That is partly because of the difficulty in finding speech and language therapists. The aim of the Bill is to build on the good relationships that have built up in recent years.

In the new scenario the health boards will be gone and there will be four regional authorities. At present there is an over-emphasis in health boards on hospitals. I surmise that behind the four regional authorities, one of the main thrusts will be reform of the health sector. Those on health boards who represent the hospitals form a powerful group. A good deal of the money that goes to the health boards is focused on hospitals. The benefit of hiving off the hospital services and the health services is that there will be an agency with a distinct vision catering for hospitals which will not encroach on the other services where community care, preventative medicine and primary care will be extremely important. The new set up will be much better from our point of view because there will be people who will be dedicated to community welfare. No great sympathy was extended to councillors when it was decided to abolish local health committees. I was a member of a local health committee which was abolished. When they became part of the health boards, due to the numbers from the medical profession, the hospitals and so on, they had inordinate clout. The new set up will leave us with a greater focus on community welfare. At least there will be a budget for that purpose. It may not be enough but it will be for that sector. In the event of a crisis in the hospitals, money will not come from the community care budget. That is almost philosophical but it will be a major help to us and will help to deliver the services in a much better way.

Section 16 agreed to.
NEW SECTION.

I move amendment No 340:

In page 18, before section 17, to insert the following new section:

"17.—(1) The principal of a school may delegate the performance of any of the functions conferred on him or her by this Act to such teacher in the school as the principal considers appropriate and a function so delegated shall, accordingly, be performable by the teacher concerned.

(2) The relevant special educational needs organiser shall give all such advice and assistance as is reasonable to the principal and teachers of the school concerned in their performance of functions under this Act.".

Amendment agreed to.
SECTION 17.

Amendments No. 341 and 422 may be discussed together. Is that agreed? Agreed.

I move amendment No. 341:

In page 18, subsection (1), line 9, after "as" to insert "an Chomhairle Náisiúnta um Oideachas Speisialta or in the English language".

Tá mé ag iarraidh teideal na Comhairle a chur isteach sa Bhille as Gaeilge.

Aontaím leis an leasú seo. I think it is technically correct but I want to make sure it is correct for Report Stage. I will accept it subject to checking.

Go raibh maith agat.

Amendment agreed to.
Section 17, as amended, agreed to.
SECTION 18.

Is it agreed that amendments Nos. 342, 346 to 350, inclusive, 353 and 356 to 359, inclusive, be taken together? Agreed.

I move amendment No. 342:

In page 18, subsection (1)(a), line 20, after “schools” to insert “, further education, third level and teacher training colleges, training and rehabilitation centres and any other persons and bodies that the Council considers appropriate”.

This entire section deals with the functions of the council, the first of which is "to disseminate to schools and to parents information relating to best practice, nationally and internationally, concerning the education of children with special educational needs." It is important to disseminate information. It is the only time that dissemination of information is mentioned. It is considered important that the council should disseminate information also to "further education, third level and teacher training colleges, training and rehabilitation centres and any other persons and bodies that the council considers appropriate." In other words, it should not just disseminate information to schools and parents but to anybody that the council considers appropriate, including those specified. The Minister may decide to leave it as a broad issue. In view of the earlier discussion regarding teacher training, it is important that the council would give information to teacher training colleges, third level institutions, further education and anyone else it considers appropriate. There may also be other bodies, such as FÁS. The council is a specialised body.

I do not know whether I am supposed to speak about each amendment or if the Minister should respond to each one.

The idea is to try to bring them all together.

Therefore I can continue. Does the Minister want to deal with each one separately?

I thought we were dealing with all amendments together. I do not know whether this will be helpful to the Deputy. The reasons many of the amendments are lumped together is that what is being sought is to make explicit what is already implicit in the legislation and what any reasonable reading of the Bill would support. There is a number of areas outlined in later amendments which, on reading the Bill, in addition to my amendment No. 357, clarify the position further. If we have a look at this in conjunction with the provisions of section 18, which sets out the functions of the council, they provide for many of the issues relating to best practice and adequate support for training of teachers. Explicitly, my amendment No. 357 meets some of the concerns expressed. Between all three, the points raised are dealt with in the legislation.

I understand what the Minister said. The reasoning behind the amendments is that they are as explicit as possible. We have had this debate on numerous days on this Bill. My colleagues and I would prefer it to be stated explicitly in the Bill in that way rather than it being left to an individual's interpretation. That is what these amendments are trying to achieve.

The Minister's amendment No. 357 refers to voluntary bodies but some of the amendments we tabled refer not only to voluntary bodies but also to statutory bodies such as the National Council for Curriculum Assessment and the National Educational Psychological Service, which are not voluntary. It is important they are specified. Again, it goes back to the issue of teacher training. If we really want to achieve anything here, we must make it mandatory for the council to get in touch with the teacher training colleges and to work with them on a basis which is defined in the Bill.

I refer to amendment No. 359 tabled by Deputy Crowe. The report, Inclusive Education and Classroom Practices, published by the European Agency for Development in Special Needs Education, highlighted a number of conditions that play a central role in special needs education. These include the attitude of teachers towards pupils with special needs and the need for teachers to have skills, expertise and knowledge and for support from outside as well as inside the school. Throughout the 14 countries studied in the report, the most important issue regarding the attitude of teachers was felt to be teacher training. There has been support for the thrust of this amendment from all the teacher representative organisations and the Irish Primary Principals Network. Will the Minister accept what is an important amendment because it deals with continually upskilling and keeping teachers in top form given that their position and attitude in the classroom is such a critical issue?

It is important we are explicit about this. The training of teachers, both new teachers and especially those in the system who will have to carry responsibility for implementation of this Bill, is crucial and that has been acknowledged by everybody. It is important information which the council comes up with as well as information on its role and research in this area is disseminated. It is also important the NCCA is involved and consulted as is provided for in amendment No. 347. There is a link between the NCCA and the council being established and that should be made implicit in the legislation, which it is not at present. A new teaching council is being established. Again, it is important it is involved and that consultation between the two councils occurs and that it is laid down. The Minister might say this will happen anyway but it may not and we may find ourselves in a position where we cannot get answers to parliamentary questions. We will be told it is an independent body for which the Minister is not responsible. This is the one chance we have to ensure proper consultation takes place between the NCCA and the teaching council.

Another function of this council should be to assist schools and boards of management to develop individual school plans in accordance with their obligations under the Education Act 1998. The National Educational Psychological Service is an important agency and it is essential it is linked in, as is proposed by amendment No. 349. Amendment No. 350 refers to school management bodies, further education, third level and teacher training colleges, training and rehabilitation centres and any other persons the council considers appropriate.

Amendment No. 353 seeks to ensure teachers are trained to the highest international standards in special educational needs. That is something to which we should aspire and of which we should take cognisance. Amendment No. 356 seeks the inclusion of rehabilitation and other training.

The Minister's amendment No. 357 refers to voluntary bodies. Perhaps he will expand on what he means by "voluntary bodies". Does it include the bodies about which we speak, namely, the NCCA, the Teaching Council, the National Educational Psychological Service and so on? It probably does not. If the Minister is providing for consultation with voluntary bodies, why does he not include consultation with statutory bodies?

On amendment No. 358, it is important the teacher training colleges and the universities are included in the consultation process. Amendment No. 359 refers to ongoing professional development, which has been mentioned by my colleague and is crucially important.

The Minister may not be prepared to accept this package of amendments now and perhaps he may need to look at them again. A number of agencies deal with education, including the National Educational Psychological Service, the Teaching Council and the NCCA, and there will now be this special council. We spoke earlier about including a provision for liaison between health boards and the council but it is also important to provide for liaison between these other agencies. One way to do so is to provide in the Bill that consultation take place between them, otherwise agencies could do different things in conflict with each other. We need to include a structure to tie all these agencies together. We might even have missed some agencies here but the NCCA must be included in some way because special educational development and the curriculum for special education will be important.

The Minister might need to look at these amendments again. It is right that these agencies have been set up, that they specialise and that they are statutorily independent in their functions, outlook and so on, but we need to link them together because there is a danger they might go off and do their own thing. That is the intention behind these amendments. This should also be tied in with proper training for teachers and a link with the universities and the teacher training colleges.

I support the general thrust of the amendments. It might be appropriate to include a general phrase such as "all relevant educational bodies" because they could all be co-ordinated in some way or another. The point is right that the focus of the functions of the council is very much towards the children, school and parents rather than in the other direction towards the other bodies involved in training and policy. I support the tenor of what my colleagues said.

The Minister's amendment is close to the mark but it misses the word "ensure" which is the critical word in Deputy Crowe's amendment. A minor amendment to the Minister's one to include that word would probably go a long way to covering the point Deputy Crowe seeks to make. While one can consult all one wants with all the people and bodies one wants, if one does not ensure this provision is made, one can consult until the cows come home because that is as far as one will go.

The Minister accepts the point because it is clear from his amendment that he is moving towards it and given his professional background, I would not expect otherwise. However, in light of what he described the other day as his benevolent nature, this opportunity should not be missed. It is clear from his amendment that he is close to us on many of these issues. Perhaps his successor will not be, so this is an opportunity for us to batten down the hatches and for the Minister to make this his Bill.

I did not describe my benevolent nature the last day; I was reflecting what the committee felt was my nature.

I knew the Minister was joking.

I was called "very benevolent".

I listened carefully to what Deputies said. There are two sides to this. If one begins to make things explicit in a Bill, there is a danger that something will be left out. A smart lawyer might say that ten bodies are mentioned but that some other body is not mentioned and argue a case on that basis. That is why the Bill is as open as it is in this regard. Deputy O'Sullivan used a phrase which we might be able to include in the section and which would be all-embracing without being explicit about the various bodies involved in the event that they might disappear.

I will consider the Bill as it stands and the amendments, including amendment No. 357, before Report Stage and try to do something that will encompass the various bodies without listing them explicitly. In that context, we may include Deputy O'Sullivan's phrase about consulting all of the relevant education bodies or something along those lines.

Deputy Morgan referred to amendment No. 357. This amendment is designed to make it explicit that NGOs, voluntary organisations etc., must be consulted and that they have a part to play. If Deputies agree, I will consider the amendments before Report Stage and see whether they can all be included in a composite amendment which would insert a new subsection.

I am satisfied with that.

Amendment, by leave, withdrawn.
Amendments Nos. 343 to 351, inclusive, not moved.

I move amendment No. 352:

In page 18, subsection (1)(d), line 31, after “to” to insert “their entitlements and”.

This amendment refers to entitlements and is quite straightforward in terms of dealing with the functions of the council. A close examination of the work it is supposed to do under section 18 suggests that there is an omission in that there is no obligation on it to inform parents of their entitlements, under the legislation, in respect of special education. There is a number of sections in which parents' rights or entitlements are outlined. While I accept that, in practice, the council would probably make that information available, placing an obligation on it to do so would improve the Bill. I do not believe that paragraph (a) covers this matter as it refers to information dealing with education of children with special needs and not entitlements per se. I hope the Minister will consider the amendment.

I will consider it. The Deputy may have a point in making a distinction between the rights of the child and the entitlements of the parents. For example, parents have rights to make appeals etc., and they should be aware of them. If the Deputy withdraws the amendment we will reconsider the matter before Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 353 not moved.

I move amendment No. 354:

In page 18, subsection (1)(h), line 42, to delete "review generally the provision" and substitute "ensure adequate provision is".

This is another amendment more proper to an adult education disability Bill. I would be willing to set it aside for ten minutes in order that we might adjourn so the Minister could give Members a quick look at the disability Bill. I gather, from what the Minister said, that some of what the amendment refers to will be covered in the disability Bill. On that basis, I will withdraw the amendment and hope that the latter is published before Report Stage on this Bill is taken.

Amendment, by leave, withdrawn.
Amendments Nos. 355 and 356 not moved.

I move amendment No. 357:

In page 19, subsection (1), between lines 4 and 5, to insert the following:

"(k) to consult with such voluntary bodies as the Council considers appropriate, (being bodies whose objects relate to the promotion of the interests of, or the provision of support services to, persons with disabilities) for the purposes of ensuring that their knowledge and expertise can inform the development of policy by the Council and the planning and provision of support services,”.

Amendment agreed to.
Amendments Nos. 358 and 359 not moved.

Amendments Nos. 360 to 362, inclusive, are related and may be taken together. Is that agreed? Agreed.

I move amendment No. 360:

In page 19, subsection (3), lines 17 to 21, to delete paragraph (b) and substitute the following:

"(b) in giving advice to the Minister—

(i) provide an assessment of the implications of that advice for the resources, including financial resources, available to the State in respect of the provision of education, and

(ii) have regard to the practical implementation of that advice.".

The wording used in section 18(3)(b), as it stands, does not express clearly or well the intention of the provision. Essentially, all that is intended here is that the council should give an assessment of the implications for resources of the advice it gives. There is little point in the council or any public body giving advice in a vacuum as if resources were irrelevant. As the provision stands, it could give the impression that the advice to be provided might be influenced by an assessment of the resources available. That is a common and often expressed concern of the various groups representing young people with disabilities. In many senses, that is putting the cart before the horse.

If, as should be the case, advice from the council to the Minister is to be useful, it must be objective and clearly state what exactly is needed. After that, the Minister must take the criticism if he is not providing resources. Amendment No. 360 attempts to ensure that objectivity is preserved and combined with an assessment of costs and practical implementation issues. It would be very useful for everyone concerned to know clearly what must be done. I hope amendment No. 360 addresses the concerns that prompted the tabling of amendments Nos. 361 and 362. As the section is worded at present, those concerns could be well founded. The new amendment clarifies the issue.

How will the council ascertain the financial resources available to the State? I assume that such information will not be within its knowledge. In that context, I do not see how amendment No. 360 can work. The information to which I refer falls beyond the remit and the power of the council. I do not have a difficulty with the council costing its proposals but I do not know how it will be in a position to ascertain the financial resources of the State. Allowing the council to cost its proposals has merit, provided it has the expertise to do so.

It will be difficult for the council to give advice on everything on which it advises the Minister. For example, the council will examine best practice in other countries and provide general information on how such education is provided in outer Mongolia, but the council could not be expected to inform the Minister how much it would cost to implement equivalent structures in Ireland. It would not have access to the same statistics as the Department on the broader implications of costs. It is impractical to expect the council to provide an assessment of the implications of the advice.

The second part of the Minister's amendment is fine and I do not mind a reference to resources. The wording places too much of an onus on the council and it might be constrained in terms of the advice it gives to the Minister in that the council might feel it cannot advise him or her on anything unless it can be costed, which is not practical in terms of the broader remit of the council.

To comply with the amendment, the council will have to have available to it figures from the Department of Finance because it will have to take into account the financial resources available to the State and the implications of its advice on them. That is not possible or practical.

Does this provision apply to other bodies? I have not come across a scenario whereby bodies must provide an assessment of the implications of their advice on the resources, including financial resources, available to the State in respect of the provision of education. Must other bodies take into account, or provide an assessment of, the financial implications of their advice to the Minister? The Minister has moved significantly but the provision is impractical, unworkable and unnecessary. It should be deleted so that the Minister shoulders responsibility for the cost. As he pointed out, it is up to him, the Minister for Finance and, ultimately, the Oireachtas to vote the financial resources and the council should not be saddled with this task.

The council's job is to provide advice to the Minister and it is then up to the Minister to take responsibility for its costs under the subsection. It would be different if the council had only to cost it but it is a mammoth task to tie that to the implications of the advice for resources, including financial resources, available to the State. People could take legal action regarding this provision and tie the legislation up in knots. Questions could be raised. For example, did the council have all the information available? Could it obtain information? When it obtained the information, what did it do with it? Was it up to date? It would be safer to delete the provision.

I am not inclined to delete it. I accept the point made by the Deputies. I do not know whether this is a common provision in legislation but, if it is not, it should be. Too many bodies are established, which then make suggestions willy nilly about what the State should do, without regard to the resources available to the State and the effect it would have on the taxpayer. That might not be a popular line to adopt in the context of this legislation but, in general, for good, prudent financial reasons, if bodies are set up and make suggestions, they should at least cost them so that people are aware of the cost. That is a general philosophical issue.

I accept, having read the section, it seems to be a mammoth task but it is not in reality. The council could decide to advise the Minister, for instance, that extra resource hours should be made available to cater for a particular disability. It should be able to inform the Department, based on its research and available information, for example, that 2% of the school going population suffers from the disability, each pupil needs three hours resource teaching and outline the approximate cost. That is what is meant by the implication on the financial resources of the State. It is probably not drafted eloquently but I do not want the Bill to remain as drafted because it can be read another way to the Department's detriment.

I am informed by my officials this is a standard provision regarding bodies that advise Ministers. They must have regard to resources, although I have not witnessed it being implemented very much.

At the end of the day, the political decision regarding how resources are spent rests with the Minister of the day and it is his or her job to juggle the resources and decide where they are allocated. If the special education council makes suggestions regarding best practice and changes, the Minister must decide whether funding should be provided or whether other programmes are more important. If the council is constrained by resources, it may miss out on making improvements.

The council must take resources into account. It could be implied its assessment is resource bound, as it is currently. The section provides that if the council makes suggestions that have cost implications, it should at least provide an estimate of the cost. That is what I am trying to say but I am not sure I am making it clear.

I do not have a problem with the point made by the Minister. Perhaps he will return to the issue on Report Stage.

I like the practical nature of the amendment. If resources are identified and allocated, there must be a costing because, ultimately, a decision must be made regarding the amount and so forth. Rather than providing X without knowing the cost, at least the Minister will know how much he or she needs to spend.

The resources involved are not only financial. For example, if it is decided X thousand people with a disability are to be given X hours of psychological support, one will quickly realise not enough psychologists are available. This provision is a practical way of planning for the future and it does not curtail the council in terms of making suggestions and approaches but, if it gives advice to the Minister, it must at least provide the cost of a programme, otherwise the programmes will be implemented on a piecemeal basis or not at all. They will be done in line with the Minister's budget rather than saying a project requires X amount to do it right. I see much merit in it as it stands.

One would think listening to the Minister that it is either Gerry Adams, Finian McGrath or I who will appoint the council members. The Minister will appoint them, therefore, he is in safe territory.

Did the Deputy see the members of the council? These are quite independent people. I met them on Monday night and I would not like to tell them they cannot do something because the money is not available.

The Minister will be well covered.

We are talking around the issue. The Minister has moved from the original amendment concerning the council giving advice and having regard to the financial resources of the State. This implied it had to tailor its advice to the availability of financial resources, which is a double impossibility. It would not know what the resources were and, it would have to tailor its advice in terms of resources. What the Minister has done is an improvement. Deputy Curran and the Minister referred to providing an assessment of possible costings, provided so many speech therapists will be required, which will cost X amount of money. People would not have a problem with this.

The problem appears to be with the wording, that is, providing an assessment of the implications of that advice for the resources available to the State. This implies it would have to find out what resources are available to the State and the implications of its suggestion for those resources, which is a different matter. It is an Oireachtas issue, not an issue for the council. If it provides the Minister with costings, it would be helpful to everyone. If members of the Opposition receive the costings, we could use them to debate with the Minister, which is fine. The Minister should look at the other side of it and the impossibility of what is being sought.

I accept what the Deputy is saying, which is that it would be impossible for the council to be aware of the resources. For example, if we are talking about the number of psychologists available——

I was discussing the financial resources.

I know, but I am reading the full paragraph.

Is the Deputy saying they cannot say to the Minister that they should have X number of psychologists?

I am saying they can say it.

The Minister has suggested that he should look again at this aspect, which I urge him to do.

The second part of the amendment refers to the practical implementation of that advice. In giving advice, they must have regard to the practical implementation of it. This is similar to what Deputy Curran has said, which is that they must have regard to the number of educational psychologists or speech therapists available. In giving advice they must have regard to the practical implementation of that advice, so would taking this into account constrain the advice they can give? I would not like to see the Minister in a position where he would not get the full advice needed because the council would have to have regard to the practical implementation of the advice. The Minister should have full and complete advice from the council. It should not be constrained in any way, otherwise the Minister will be exposed.

Sitting suspended at 2.45 p.m. and resumed at 5.15 p.m.

We have had a good discussion on amendment No. 360. My amendment is better than is currently provided for in the Bill and I ask the committee to accept it on the basis that I will take another look at it to see if we can make clearer that we are not expecting the council to know the intimate details of national finances.

The second part of the amendment which states "having regard to the practical implementation of that advice" appears to be a return to the original subsection.

It is included to steer us on how a council would envisage recommendations being carried out and to provide them with a say in that regard. I will take another look at that issue to see if we can make the amendment clearer.

I was positive on that point. I felt it provided the council with a broad remit. Rather than speaking of resources that might be necessary and identifying resources not available, it would also allow the council — I am not necessarily speaking about money — to make recommendations on training courses for teachers in education or in policy from the point of view of the number of specialists needed. It was my view, having read the provision, that the council's remit would be wider by having that power. I felt it was not being pigeonholed into concentrating on what is available today.

I know Deputy Stanton disagrees with me on this point.

One could view it another way in that their advice would be circumscribed by whether the advice could be put into practice. For instance, if the council were to advise the Minister on the need for a specific number of speech therapists and knew that was not practical it might decide not to give that advice.

However, the advice might be how such therapists could be provided.

That is the view of a Government and Opposition backbencher. The Deputies are ideally suited to their roles.

Amendment agreed to.
Amendments Nos. 361 and 362 not moved.
Question proposed: "That section 18, as amended, stand part of the Bill."

I know what is intended in section 18(1)(a) and did not know when I read it whether I should comment on it. The problem is that best practice means different things in different places. A parent of a child with a disability needs to consider all types of options. Section 18 is extremely broad. I understand its intent but what may be recognised as best practice in one country may not be recognised elsewhere. The Minister is placing an enormous onus on the council to disseminate a wide range of information. The question then is who determines what information is best practice. I do not wish to be critical but the parent of a child with a disability would tend to consider examples far and wide. Some alternative may be fairly untried or new in terms of development but could be indicating positive results. Perhaps the Minister will consider my remarks.

Question put and agreed to.
NEW SECTION.

I move amendment No. 363:

In page 19, before section 19, to insert the following new section:

"19.—(1) It shall be the duty of the Council——

(a) to keep under review the provisions of this Act,

(b) to keep under review any other relevant statutory provisions that affect, or may affect, the carrying out of its functions under this Act, and

(c) to submit from time to time, to the Minister or any other Minister of the Government having responsibility for the other statutory provisions, such recommendations as it considers appropriate in relation to the said statutory provisions or for the making, modification or revocation of any instruments under those provisions.

(2) Before submitting recommendations to the Minister or such other Minister of the Government, as the case may be, in accordance withsubsection (1)(c), the Council shall consult any Minister of the Government, or other person that appears to the Council to be appropriate in the circumstances or that the Minister, or other Minister of the Government, as the case may be, so directs.”.

This provision is standard in a great deal of legislation. It requires the council to keep under review the provisions of the Bill and any other relevant statutory provisions that affect, or may affect, the carrying out of its functions under this Bill and to submit, from time to time, to the Minister or any other Minister of the Government having responsibility for the other statutory provisions, such recommendations as it considers appropriate in relation to the said statutory provisions or for the making, modification or revocation of any instruments under those provisions.

The provision is standard in that the council would be required to keep under review the provisions and functions of the Bill. If changes were deemed necessary, it would be the council which would have the expertise in this area and whhich would be in a position to advise the Minister and work with him or her in updating or amending the Bill. It also means we would have an expert eye on the Bill during its implementation. There would be an onus on said body to advise the Minister of such needs. Currently, there is no such watchdog in this regard. This is a positive provision to include in the legislation and would give the council a role in this regard.

What the Deputy refers to is already ongoing. As things stand, the council is obliged to prepare an implementation report outlining the steps considered necessary to ensure the Bill, when enacted, is fully implemented. It also has the power to advise the Minister of the day on any matter relating to disabilities and to conduct and commission research on matters related to its functions. What the Deputy seeks is already provided for throughout the legislation.

The council, in performing its functions, does need to dovetail and work with other agencies. Those agencies operate under separate legislation. There may be a need to cater for that. The Deputy's amendment touches on the matter and I am prepared to look at it on that basis on Report Stage. It may just be necessary to tie it down a little more.

I thank the Minister for that. What the Minister is suggesting widens my suggestion even more, through bringing in other legislation, agencies etc. in this area, which I welcome. I am aware the Bill demands that the council keeps an eye on implementation. My concern is for the legislation as enacted. If the legislation needs to be amended, no provision has been made in the Bill to direct anybody to make amendments to it or to make recommendations to the Minister. It is important to include such provision. It would help the Minister of the day enormously if the council was given that brief and if that was part of the council function.

The council has the function of advising the Minister on any matter. It is open to it to do so. I will look at the amendment again in conjunction with what I said regarding other bodies for Report Stage.

Amendment, by leave, withdrawn.
SECTION 19.
Amendment No. 364 not moved.

Amendment No. 365, amendments Nos. 372 to 375 inclusive, amendments Nos. 379 and 380, amendments Nos. 403 and 406, and amendments Nos. 409 to 411, inclusive, are to be discussed together. Is that agreed? Agreed.

I move amendment No. 365:

In page 19, subsection (2), line 37, after "disabilities" to insert "and shall ensure that the members include persons with educational disabilities, members of the family of persons with educational disabilities, and carers for persons with educational disabilities".

The broad tenor of these amendments is to ensure that people with disabilities, their family members and-or carers are included in the membership of the council. The later amendments also relate to membership of the appeal board. This amendment is self-explanatory. Broadly, we want to ensure the people listed are included in both bodies.

The Minister has already announced the council and I presume the appointments are on an interim basis while awaiting legislation. There are members on it who have disabilities or who represent certain disability organisations. Some of the bigger organisations, for example NAMHI, are not represented on it. It would be a good idea to have larger umbrella organisations represented, for example the Disability Federation or NAMHI. These interests should be represented.

Clearly, when the Bill concerns disability, people with disabilities, their families and carers should be represented. This provision should be part of the Bill. The Minister has made a decision which reflects what we are looking for in the initial announcement. However, I feel strongly that the provision should be written into the legislation to ensure we have that continuity in the future.

I tabled amendment No. 373 and amendments Nos. 404 and 406. Other Opposition Deputies have proposed amendments with similar wording. These amendments require the Minister to ensure that members of the disabled community are represented on the appeal board and national council of special education. This is a large group of amendments on the issue. I ask the Minister to take on board the arguments of the Opposition and to adopt an amendment in favour of this.

The issue is about empowerment for the disabled community and about role models. Is there a reason the Minister should not put somebody on the board? The difference lies between working on behalf of people with disabilities or working with them. It is a fine line. If, for example, we set up a committee on racism, would it be an all-white committee? It would not be so. Here we have the same argument. If the council is to deal with people with disabilities, members of the disabled community should be on the board. We must include the requirement that they are on the board because they have a background in the area. We are not familiar with living day to day with a disability but people from that background are. Having them on the council and the appeal board would only enhance the boards.

These amendments endeavour to ensure that both now and in future disabled people will be represented as members of the council, the consultative forum and the appeals board. They have a part to play and to include this provision in the Bill would put that on a statutory footing. The provision is not already in the Bill. The Minister of the day might appoint a member of the disabled community — perhaps this Minister has done so — but including the provision in the Bill will ensure it continues in future. The amendments also take into account the needs of advocates and representative organisations. These have much to offer and have huge expertise.

I do not know the reason for it but amendment No. 380 is also part of this group. It says: "In page 21, subsection (2), line 16, to delete "12" and substitute "6"." This amendment will just shorten the time, from 12 months to 6 months from the establishment day, by which the council shall make the implementation report to the Minister outlining the steps that must be taken in order for the provisions of this Act to be fully implemented within the specified period in the report. Six months would be adequate for this and that is why we have tabled this amendment.

It was brought to my attention this weekend — one of the amendments mentioned the matter — that teachers or teaching groups are not represented on the council, particularly primary teachers, who have a huge role to play in the area. That is something which the Minister should examine.

In selecting the members for the council I was extremely careful. I was determined that it would not end up being a body representative of any group or groups. Those kinds of councils do not work. The approach used was to allow different groups nominate members to the board. Obviously, I had to make choices in that regard. However, I was determined not to have a representative of, for example — I am not picking on a particular group — the INTO, the ASTI or anybody else on the boards. I wanted to have people, as defined in the Bill, who had a particular interest, involvement with or expertise in this area. Whether we ended up with 12 people with disabilities or none with disabilities, I would have put them on the council. As it happens we have a good representative board.

As the Deputies said, I see much merit in having people with disabilities directly involved as members of the council and in other fora which will decide on the level of provision for children with special educational needs. I do not subscribe to the view that it is necessarily essential. In my view, the Bill as it stands addresses the issues under discussion very well. Under section 19(4), two members of the council are to be nominated by the National Disability Authority which is an independent body, established by law and charged under it with ensuring that the entitlements of people with disabilities are protected. I believe that should be left in the capable hands of the authority. If I recall correctly, the NDA has not nominated persons with a disability to the council, but I have no difficulty with that. It is the body responsible and it has the right to nominate people and the decision should be left in its hands as to the nomination of persons with a disability.

Other nominating bodies and the Minister of the day, whoever that might be, can decide to include people with disabilities if they so wish and I have done so. It is more important to have people with expertise and experience that is useful to the council. The last thing I want to see happening is that the council would represent various interests. I expressed this view to the council on Monday and it took it on board.

Of the ten people. other than the two Department officials, five members are parents of children with disabilities and they were deliberately and specifically chosen because of their personal expertise. Some of them, including the chairperson, have been involved with national organisations. Not all Ministers in the future may be as benevolent as me. Due to the manner in which the section is drafted I do not think any Minister would come up with a very different composition for the council. We are looking for the best possible people for the council. Obviously, it is an area of concern and I will give further thought to the composition of the membership of the council before Report Stage to see if it can be tweaked one way or the other. However, as it stands, it gives the flexibility to appoint the best possible people to the board and as legislators that should be our aim.

I accept that the nominations made by the Minister have carried through the principle we are discussing. I accept there is the requirement that the National Disability Authority nominate two of the people concerned. I would like the representation of people with disabilities and-or their families to be a little tighter. The current Minister's position is fine but we must legislate for the future and it is something on which the organisations have strong views because of their past experiences where they were told what they should need rather than listened to. I ask the Minister to bear that point in mind before Report Stage.

My amendment No. 372 relates to this area. It suggests that the Minister would have regard to the desirability in the membership of the council to have persons who themselves have special educational needs, their parents and representatives. It does not tie the Minister's hands in that regard, but it indicates the desirability so that any future Minister would have regard to it.

It focuses it a little more.

I will withdraw the amendment on the basis of the Minister's reply.

Amendment, by leave, withdrawn.

Amendments Nos. 366 to 368, inclusive, are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 366:

In page 19, subsection (3)(b), line 42, to delete “and” where it secondly occurs.

This amendment deals with the membership of the council. The Minister should consult with recognised learned bodies representing learned professions. The professional representative bodies envisaged were the Psychological Society of Ireland, for example. This amendment was prompted by people from that organisation who were concerned that they should be consulted or at least asked for their views before the Minister made appointments to the council.

Amendment No. 368 proposes that the Minister would consult this committee or at least inform the committee and ask for its views. It means consultation, nothing more. The Minister might write to the committee and inform it of his proposal to appoint certain people with certain experience, knowledge and background to the council and ask the committee for its views.

I support amendment No. 367. The Psychological Society of Ireland made representations to me and I believe it has a valid point. It is just as valid a professional association as the trade unions representing teachers and principals and its members are as involved in this issue as teachers. They have a right to be consulted.

We are all in agreement that the council should have the expertise and experience it needs to carry out its important functions and that is clearly stated in section 19(2). Neither amendment No. 366 nor amendment No. 367 add anything in that regard.

The suggestion is that the Minister of the day would be in a position to consult with a slightly wider group to include the recognised learned bodies such as the Psychological Society of Ireland and a committee such as this, in order to be helpful to the Minister of the day.

Amendment No. 368 deals with a totally separate matter. On amendments Nos. 366 and 367, what happens in fact and in practice is that people write to the Department and make nominations and so on. There is nothing to stop them doing so. They can submit names at any stage. With regard to amendment No. 368, this is the American-style model and it would take a full Government decision rather than a decision of one Minister. There is a slight confusion here between the roles of the Executive and legislative arms of Government.

The establishment of public boards is a matter for the Legislature and it is an Executive function. The role of the Houses of the Oireachtas is to hold the Executive responsible afterwards for the decision it makes. It is not a role currently for the Houses and the committee to be involved directly in determining the composition of boards. Perhaps, with Oireachtas reform, that will change. I am brave in some of the decisions I make, but I will not make one like this.

Amendment, by leave, withdrawn.
Amendments Nos. 367 and 368 not moved

I move amendment No. 369:

In page 19, subsection (3), line 44, to delete ", where the Minister considers it appropriate to do so,".

This amendment speaks for itself. I do not understand why it is necessary to include the phrase "where the Minister considers it appropriate to do so".

It provides the Minister of the day with the discretion to accept or reject nominations from the education partners if he or she wishes to do so. It is a discretion which the Minister currently has and it is better to retain it.

Amendment, by leave, withdrawn.

Amendment No. 371 is an alternative to amendment No. 370 to which amendments Nos. 378 and 405 are related. Amendments Nos. 370, 371, 378 and 405 may be discussed together by agreement.

I move amendment No. 370:

In page 20, lines 15 to 18, to delete subsection (5) and substitute the following:

"(5) The Minister shall ensure that at least 40 per cent of the members of the Council are women and at least 40 per cent are men.".

The purpose of this amendment is to include in the legislation a requirement to establish a gender balance. Aspirations to a gender balance in which at least 40% of members are men or women is useless unless there is a way to ensure the measure is implemented. I feel strongly, therefore, that this provision should be included in the Bill. The reference to a gender balance currently included in the legislation is relatively weak. It provides that the Minister shall have regard to the desirability of such gender balance. In the nomination of two members by the National Disability Authority and the Minister for Health and Children there is a requirement that equal numbers of men and women are nominated, although not appointed.

I compliment the Minister on the composition of the board which he announced. It is gender balanced with six men and six women. While the Minister's heart is obviously in the right place, I would like to see the inclusion in the legislation of a requirement of gender balance. He will get full marks from the Minister of State, Deputy O'Dea, for his gender balance in this case. I feel strongly that provisions of this type should be written into legislation; otherwise one ends up not achieving them at a later stage when people are not concentrating as much on the importance of gender balance. We have a good example in the Council of Europe this week of what can happen when there is no element of gender balance at all. In the absence of a requirement, one ends up with a wide variety of bodies and boards which aspire to 40% gender balance according to Government policy, but fail to achieve it. The Minister has an opportunity to include this provision and he should take it.

I support Deputy O'Sullivan. While there is a gender balance on the council, if we look at other State bodies and organisations, it is not being achieved generally. The groups who came before the committee were fairly gender balanced, which means it is not a question that there are not enough members of either sex available to achieve gender balance. It is important to make the provision.

There is a danger in including such a provision in legislation that one could find oneself appointing to a board at some stage a person who really is not suitable. That is a general issue. I feel very strongly that we should do a little more than simply say we have an aspiration to 40%. It is not so bad in this case as it is the National Disability Authority which has the right to make two nominations. In the cases of other boards to which the board must appoint members, the outside bodies which make nominations must be considered. In this regard I am speaking in particular about trade unions and farming organisations which put forward almost exclusively male nominees. That limits the Minister in terms of the people from among whom he can select an appointee. One ends up selecting four women to try to provide balance to a board, but they may not be suitable. The same thing could happen in reverse.

The people who preach about achieving a 40% gender balance are the very ones who fail to make the nominations. The two Departments in this instance nominated two males. I accept the amendment to include a requirement of 40%. I could be totally sexist and require 40% men rather than 40% women. Perhaps we can require at least 40% of each sex in keeping with the goal of equality. I accept the principle of the amendment although I have lost the wording. I will accept amendment No. 370 because it is important to include such provisions where possible. As some Deputies mentioned, many of the groups and organisations in this area include a good mixture of male and female members and I do not foresee a difficulty into the future. I may have to include a caveat such as the words "where that is possible" to avoid a future scenario in which a Minister would have to come to the House to change the legislation.

On the numbers, the figure given was 40% and there are 13 members made up of the chairman and 12 others. That means one must have six men and seven women orvice versa. There is no other permutation which will allow the achievement of the 40% gender balance. I make that observation to bring to the attention of the committee the significance of requiring 40%. There is little margin. That is how tight the provision will be; that is the consequence.

I do not accept the argument that one could not find suitable members for the board among all the women out there.

It might be men in this case.

Men or women.

It is more likely that one would not be able to find good men.

It is usually the other way around and I do not accept the Minister's argument that there would not be suitable women. The greatest problem with many boards is not issues of gender balance, but the fact that political hacks are appointed to them. The argument that one might have difficulty finding suitable people does not run. I do not accept it.

It has happened. I had fierce problems at one stage in my previous ministerial appointment.

Out of the entire female population in Ireland, could the Minister not come up with suitable people?

It was not women with whom I had a difficulty in the instance to which I am referring. It happens the other way. We should not get completely focused on one side of this issue.

It is very unusual that it is the other way.

It happens in the usual way 99% of the time, but it can happen the other way. I have talked about the 40%, which is related to Deputy O'Sullivan's point. I accept the argument and it is not a question of political hacks.

We are making a fair argument.

Let us consider the history of all these boards.

It is not a fair argument. It does a disservice to the vast majority of people on boards.

Is the Minister saying it did not happen in the past?

I am not saying that. I have no doubt that if Sinn Féin was in Government in the morning, it would have a fair number of its hacks on the board as well. I would not get too——

Well qualified——

The Deputy should not get too pious.

I do not want to sound pious.

He does a little.

I am sorry if I do.

The Deputy is now talking himself out of it. I will be generous and refer his amendment to the Parliamentary Counsel; I believe we can work with it. I will not accept amendment No. 405, which concerns a strict gender balance on the appeals board. It is not that I do not believe a gender balance is desirable — we would try to achieve that — but the appeals board will consist of a very small group of very expert people needed to make a judgment, who may be limited in number. They could all be women and therefore I do not want to impose rigidities that might prejudice the effectiveness of the board one way or the other.

I accept amendment No. 370 in the name of Deputy O'Sullivan and I will refer Deputy Crowe's amendment to the Parliamentary Counsel.

Amendment agreed to.
Amendment No. 371 not moved.

I move amendment No. 372:

In page 20, between lines 18 and 19, to insert the following subsection:

"(6) The Minister shall have regard to the desirability in the membership of the Council persons who themselves have special educational needs, their parents and representatives.".

Amendment agreed to.

I move amendment No. 373:

In page 20, between lines 18 and 19, to insert the following subsection:

"(6) The Minster shall ensure the membership of the Council includes members of the disabled community.".

It has already been discussed.

I want to press this amendment.

Did we not already discuss this amendment?

The Deputy wants to put it to a vote.

Is it not more or less the same as amendment No. 372, which has been accepted?

Yes, except that amendment No. 372 includes "parents and representatives".

I will withdraw the amendment.

Amendment, by leave, withdrawn.
Question proposed: "That section 19, as amended, stand part of the Bill."

There is a provision that two members from the authority be nominated and appointed by the Minister. If it transpires, for one reason or another, that one of those members is not suitable — the Minister has already indicated that this can happen — does he have the authority to reject that nomination?

It states "shall".

This time, if I recall correctly, two men and two women were nominated. Four men and four women could be nominated but equal numbers of each sex have to be nominated. I have to accept two of the nominees.

Now that we have accepted the requirement that 40% be male and 40% female and that after the chairperson is appointed the remaining 12 members must comprise six males and six females, who selects first? Does an instruction go to the authority? From a practical point of view, the Minister is now looking for six males and six females, two of whom must come from the authority. Must these two people be a man and a woman?

No. According to the legislation, I request the authority to nominate people. I can select the nominees if I wish. The authority has to nominate an equal number of men and women. If I recall correctly, the authority nominated four people — two men and two women. Obviously, in an effort to maintain the gender balance, I chose one man and one woman from those four people.

Is there a requirement for the authority to nominate four? As I read it, it can nominate two.

The Minister, according to the legislation, must accept those two people. If one of them was deemed unsuitable, would the Minister have to accept that person?

No. I could ask the authority to re-nominate.

According to what I am reading, the Minister's hands are tied and he or she must accept the two nominees.

The board must have two members of the authority. I understand Deputy Stanton's question, that is, whether I have to accept the two candidates nominated by the authority if neither is suitable.

There is no provision in that regard.

It does not prohibit it.

It states clearly that the Minister shall appoint to the council two members from among persons nominated for such appointment by the authority.

If we start inserting caveats, the Deputy will be back here asking me what I am trying to do.

In practice, if there were two totally unsuitable people, the Minister and his officials would state to the authority that the people in question should not be nominated. The authority might or might not decide to change the nominees, but that is its business. It will be answerable to its members ultimately.

The provision states, "two members from among persons nominated". Does the Minister envisage that the authority will nominate more than two and that he will pick two?

Yes, if it so wishes. Sometimes an organisation such as the NDA might not want to make the choice itself. This would allow it to blame the Minister.

It is like a selection bench.

Question put and agreed to.
SECTION 20.
Amendments Nos. 374 and 375 not moved.

I move amendment No. 376:

In page 20, subsection (4), between lines 40 and 41, to insert the following:

"(c) voluntary bodies whose objects relate to the promotion of the interests of, or the provision of support services to, persons with disabilities,”.

We had a brief discussion on this issue earlier. The amendment's objective is to strengthen the role of the voluntary sector in respect of the implementation of the Bill. That was a request made to me and I am sure it was also made to the Deputies opposite. The request was made, not surprisingly, by most groups consulted in respect of the Bill. Obviously, the voluntary sector makes a major contribution to the education of children with disabilities, especially in providing a wide range of therapies, other support services and accommodation. The amendment provides specifically for the inclusion of the voluntary sector in the make-up of the consultative forum and this will bring added expertise to the centre in respect of the special education system. Although this could be done without any specific reference to the sector, including them in this way will help bolster confidence that their views will be heard. That is especially so since other education partners are specifically listed. Some of the Deputies opposite had indicated they would like to see such a provision included. I am pleased to include it in the Bill.

Amendment agreed to.
Amendments Nos. 377 and 378 not moved.

I move amendment No. 379:

In page 21, between lines 8 and 9, to insert the following subsection:

"(6) The Council shall have regard to the desirability of including a person or persons who have special educational needs, their parents and/or such representative groups in the membership of the consultative forum.".

This amendment is very similar to the one the Minister has already accepted. The other one had to do with the council, while this is concerned with the consultative forum, which is a different body. It is the same idea.

I agree it is similar to the other amendment, but I cannot imagine it is necessary in the case of a consultative forum. It will not be a very good consultative forum if all these people are taking part. I will consider it for Report Stage. I do not think it is necessary to be specific in this case, but perhaps it is.

Amendment, by leave, withdrawn.
Question proposed: "That section 20, as amended, stand part of the Bill."

The Acting Chairman is in a terrible rush. How many people does the Minister intend to have on the consultative forum?

There will be a maximum of 17.

All right.

Deputy Stanton and I mentioned the Psychological Society earlier. It would argue that it should be consulted about the consultative forum, on the basis that school management and teachers' unions are being consulted and it is the other professional organisation involved.

I will consider that. I do not particularly want the consultative forum to become——

I am not saying that representatives of the society be put on the consultative forum, only that it should be consulted about the matter before anybody is appointed to the forum.

Yes. We can do that.

It is a matter of parity of esteem for the representatives of the different professional groupings involved.

It may be necessary to insert something specific under section 20(4)(b), such as a mention of representatives of other professional organisations involved in the delivery of special education. I am wary of specifying too much, because then people feel left out if they are not mentioned. However, we will try to make the point by having a general statement such as this.

Question put and agreed to.
SECTION 21.

I move amendment No. 380:

In page 21, subsection (1), line 16, to delete "12" and substitute "6".

I mentioned earlier that the council is given 12 months to make its report after consultation with the consultative forum and the Minister. It does not say how long it is given to consult, but after the consultation is finished it has 12 months to make a report, which seems a long time. I suggest we reduce this to six months. Perhaps that is a little too tight, but 12 months seems very long. There is no mention of how long the consultation is to last.

With good reason, if the consultation on this and the other Bill is anything to go by. We will be accused of cutting things short if it remains at 12 months. I understand the Deputy's point and I will consider it in the context of all the timelines of which we spoke.

Amendment, by leave, withdrawn.

I move amendment No. 381:

In page 21, subsection (2), line 21, to delete "5" and substitute "3".

This is another time-related amendment, changing the period of five years specified in the Bill to three years. Perhaps the Minister will consider this along with the other time amendments.

I will consider it, but the Deputy should not hold his breath when we put down the Report Stage amendments. No matter how ambitious we are about this, we are better to be realistic. I do not think it will be possible for the provisions of the Act to be implemented within a three-year period. There is nothing to stop the council from doing it within a three-year period, but we should be realistic. I will consider the Deputy's point in the context of the timelines, but I do not want to mislead him. My inclination is to leave it at five years.

Amendment, by leave, withdrawn.
Section 21 agreed to.
Sections 22 and 23 agreed to.
SECTION 24.

Amendments Nos. 382, 383 and 385 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 382:

In page 22, subsection (3), line 31, after "have" to insert the following:

"a third level qualification at degree level and a professional qualification relevant to the provision of education support services to children with special educational needs and shall have at least three years experience in the delivery of such services and".

Special educational needs organisers are central to the implementation of this Bill. We felt it was important that the qualifications and expertise of these people be discussed and specified. They should initially have a degree-level qualification and a professional qualification relevant to the provision of educational support services to children with special educational needs and they should also have at least three years' experience in the delivery of such services. These positions will be very important and we need people who have much experience and knowledge and the right qualifications. They will be making important decisions and they will need to know what they are doing. Much of what we are trying to achieve in the Bill will depend on them.

According to the advertisements put forward recently, special needs organisers are to be engaged on a short-term contract basis. I worry about whether there will be much take-up if this is the case. Amendment No. 385 provides that the Minister shall consider appointing special needs organisers in a permanent, whole-time, pensionable capacity. We were obliged to word the amendment in a certain way, providing that the Minister should "consider" this, so that it would not be ruled out of order. I hope the Minister takes this on board. A career structure should be provided for these people. Perhaps the Minister has an idea of seconding teachers from schools. If that happens, the remuneration must reflect the circumstances.

Amendment No. 383 seeks to qualify subsection (3). The overall thrust of these amendments is to ensure the level of qualifications and experience of special educational needs organisers, the contracts issued to them and, allied to that, the rates of pay attract the right type of people one wants to the role.

I have some sympathy with the thrust of these amendments which are aimed at ensuring that those assigned to these positions have the qualifications and skills necessary to do the job well. Obviously, that is in the interest of the children, parents and schools. However, I am reluctant to put the type of details contained in amendment No. 382 into legislation. I accept that a third level education is desirable. It was a condition in the application for the positions, as indeed was experience. In this case, two years' experience was specified. However, who is more valuable, a person with a third level degree and three years' experience who might not have much sympathy for a child's special needs or a person with a primary certificate with 25 years' experience of delivering service to a person with disabilities? What the Deputy has in this amendment is what is the case.

It is more important that the detailed decision is left to the council, which will be the employer. The council, not the Minister, will make the appointments and it will determine the terms and conditions of employment, as circumstances require. I also have a difficulty in appointing a person for life to this position. Dealing with children with special needs, and their parents, is not an easy job. People may want out of the job after ten years' service. The tenure is currently five years and it would be wise to leave that in. It is better that this is left as a matter for the council rather than being put into legislation which could be difficult to change in the future.

I am not accepting these amendments.

The special educational needs organisers should have some experience in dealing with children with special educational needs. Will the Minister organise some type of secondment to fill posts? Many applicants would be full-time teachers and to resign their permanent and pensionable jobs in schools to take up a five-year contract would be a huge step, with no guarantee of being kept on at the end. Teachers will be slow to make such a move. People with the ability and experience to do this job well will not be attracted to it with such conditions, as the Minister just outlined and as recently advertised. In order to get the best possible people for these posts we, as legislators, have a responsibility to emphasise that this role is important and mechanisms are in place to attract top candidates with expertise, qualifications and, as the Minister said, empathy towards the job itself. However, as recently advertised, I do not think this will happen.

It would be interesting to know how many people applied and whether the candidates have experience. I do not want to cast aspersions on people but this is my worry about this section of the Bill. The special educational needs organiser is crucial to the implementation of the Bill's provisions. To attract people from the educational sphere with, say, masters degrees in special educational needs, the Minister will have to ensure the salary is attractive and a secondment arrangement for those in teaching is available. I take the Minister's point that this is a new post and some people may wish to return to teaching after five years if they find the workload onerous. However, this is an area that needs to be tightened up.

From general conversations with the chief executive of the special education needs council, there has been no shortage of applicants and they come for a wide spectrum. He mentioned to me that a number of primary school principals have applied. Two thirds of the applicants are from the educational sector and the remainder from related health services. There were over 300 applications for the 80 places and the interviews are ongoing and will continue for several more weeks. It is my understanding that for teachers, secondment is okay for five years but that after that they have to make their mind up as a second five year secondment would not be possible. People can be reappointed after the end of five years.

What is the payscale for this post? Is it more than a teacher's salary?

It is between €46,000 and €51,000.

The Minister may not have the information today but will the Garda vetting unit vet people applying for these jobs? I know vetting is limited within the education sector. I received a letter recently where a school could not get vetting for a caretaker from the Garda. It is important that this comes under the Garda vetting unit.

There is still a difficulty with vetting and the Garda vetting unit. When the Civil Service Commission makes appointments there are some checks made. I take the Deputy's point but there will not be formal Garda vetting of these posts.

It would be a good idea to request it.

The Deputy is right about that. There is a review, headed by the Department of Justice, Equality and Law Reform, in the area of vetting and we feel this should be included.

When that is up and running, it is inevitable that anybody working with children will be included.

It is not decided yet because the committee is still meeting, and there is a North-South dimension to this. It is envisaged that it will be rolled out to all the caring professions.

There was to be priority for children with disabilities.

Absolutely, yes.

Amendment, by leave, withdrawn.
Amendments Nos. 383 to 385, inclusive, not moved.

Amendments Nos. 387 and 388 are related to amendment No. 386. We may take those together by agreement. Is that agreed? Agreed.

May I also comment on amendment No. 390? I will give my reasons.

Is that agreed? Agreed.

I move amendment No. 386:

In page 22, lines 38 to 41, to delete subsection (5).

These amendments refer back to section 3, when I tabled a large number of amendments relating to the deletion of "principal" and substitution of "special educational needs organiser". They were not agreed to, and as a result, the amendments I now have will not make sense in the context of what has taken place. I would have preferred the special educational needs council to be better resourced and more hands-on than is now outlined. However, the Minister has agreed to examine again the workload of the principals. None of those previous amendments have been pressed, and the main vote was lost. As a result, I will not press amendments Nos. 386 and 390 in my name, and will not waste committee time in elaborating on them.

Amendment, by leave, withdrawn.

I move amendment No. 387:

In page 22, subsection (5), line 38, to delete "officer" and substitute "organiser".

Amendments Nos. 387 and 388 are technical amendments in that all through the Bill we are talking about a special educational needs organiser and we now have a special educational needs officer. Further on in the Bill there is reference to responsibilities of officers. The amendments are designed to ensure consistency.

I thank the Deputy for pointing out the mistake.

Amendment agreed to.

I move amendment No. 388:

In page 22, subsection (5), line 41, to delete "officer's" and substitute "organiser's".

Amendment agreed to.

I move amendment No. 389:

In page 22, subsection (6), line 43, to delete "recognised".

This is also a technical amendment which we discussed previously. It is designed to remove the word "recognised" before "schools" because education will take place in places other than recognised schools.

Amendment agreed to.
Amendment No. 390 not moved.
Question proposed: "That section 24, as amended, stand part of the Bill."

The special educational needs organisers will be operating around the country. Will they operate from the Minister's regional offices? Will they have a base, and back-up staff to help them with some of the administrative work which they will undoubtedly have to carry out, or will the organisers have to do it all themselves?

How will the location of the organisers be assigned? I presume the council will make the decision, but I know from the roll out of the National Educational Welfare Board — counties Laois and Offaly come quickest to mind — that there is no official located in either county, though there are difficulties in certain areas there, and a number of disadvantaged schools.

The intention is that the 80 special educational needs organisers that are appointed will cover the entire country. Their bases will be the regional education offices, of which there are ten. The organisers will have to do much of their own work themselves but the regional office will be the base, with a secretariat available there. We are trying to centre our educational services on a regional level, including the inspectorate and the welfare officers, and the special educational needs organisers will be in those offices too. Once we have the ten regional offices established we may move a little further in terms of outreach offices in various areas, attached to the regional offices. The special educational needs organiser might be located in such an outreach office. We want to keep them close to the ground, so to speak. That is the aim of having them in the regional offices.

Is the figure of 80 organisers seen as the final number, or is that expected to increase at any stage?

It is the initial number. We will have to wait and see how that works. It is designed to ensure a national spread. The Department and the council may find after a while that there is a bigger concentration of special needs in particular areas. We rarely roll out a service and stay at the same initial level. I expect the service to expand.

Question put and agreed to.
Section 25 agreed to.
SECTION 26.

I move amendment No. 391:

In page 23, subsection (3), lines 27 and 28, after "Council" to insert "shall lay a copy of the report before each House of the Oireachtas".

The Bill talks in terms of the Minister being of the opinion that the council has failed and neglected or refused to perform the function assigned to it under the Act. That is fairly strong language. The report should go to the Houses of the Oireachtas.

In a press release relating to the council issued on 6 January, the Minister named the chairman and 11 members. I understand we are talking of 12 members. Will someone else be appointed, and will that person be an INTO member?

The person may be an INTO member but will not be nominated because of being a member.

Is there someone else on the board?

We approached another person regarding council membership and that person has been considering it. Rather than delay the council we went ahead.

There is confusion because people thought there were 12 members.

The figure is 12. In any of these cases it is not necessary to have 12 members, though the number may be as high as 12. We will be appointing a 12th person.

Like the 12 Apostles.

My argument is that the report should go to both Houses of the Oireachtas.

It would not be appropriate to lay such a report before the Houses because one must provide for due process in the removal of the council itself. An essential part of that due process is that persons being removed would have to be informed of the charges against them. They would have to be given the opportunity of putting forward their position and their counter-arguments and so on. If such a process were going on, and we were to air the matter publicly prior to a decision being taken, we would not get away with that because of constitutional protections and so on. However, accountability to the Houses is provided for in subsection (7), which would address the Deputy's concerns. Where, at the end of that process, the council or any member thereof is being removed, we must bring a positive motion to the House. It would have to be discussed in the House at that stage.

Amendment, by leave, withdrawn.
Section 26 agreed to.
Section 27 agreed to.
SECTION 28.

I move amendment No. 392:

In page 25, lines 1 to 4, to delete subsection (2).

This amendment would remove the subsection concerning the accountability of the chief executive officer to the Committee of Public Accounts. Section 28(2) reads:

In the performance of his or her duties under this section, the Chief Executive Officer shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.

That seems to be gagging the chairperson to a considerable extent regarding Government policy. Perhaps that is in all Bills; I do not know.

I am a member of the Committee of Public Accounts. It is precisely the same for us. As a committee, we do not examine the policy. It is consistent with the work of the committee.

: It is a standard clause designed to ensure the CEO of a board has no role in criticising Government or ministerial policy. He or she has a role in delivering on that policy rather than criticising it. It is fairly standard.

Amendment, by leave, withdrawn.
Question proposed, "That section 28 stand part of the Bill".

Where is the chief executive to be based? Does he or she have an office somewhere?

The headquarters of the national council for special education are in Trim, County Meath, and he will be based there.

How convenient.

I will be able to keep a very close eye on it.

It is handy for some.

I wanted to ensure that we got the best people.

Question put and agreed to.
SECTION 29.

I move amendment No. 393:

In page 25, lines 15 to 18, to delete subsection (2).

This is a separate one where the chief executive comes before a committee of the House. Such committees certainly have a role in examining Government policy. If a chief executive came before this or a similar committee and was asked for an opinion on policy, I wonder whether the official in question should then be muzzled by that subsection.

This is also related to some of the circulars for psychologists. We have had people before this committee in the past who would not answer certain questions because their comments might have infringed on policy. It would be an open, transparent and eminently desirable thing to do. In certain other countries officials would not be as tied. It would not necessarily do any damage to ask someone before a committee, as opposed to in public, to give his or her professional opinion. People will always have different opinions within Departments, but ultimately policy is policy. It is not necessarily a bad idea for a chief executive officer to be able to outline what in some cases will be his or her contrasting opinion to find out the merits and demerits of a decision.

This brings us back to the same point that we discussed before. It would be an absolute disaster if everyone that so wished started giving opinions on policy.

It would apply only when they were asked by the committee.

That would be kept very quiet, even if it was positive. I suspect that it would end up completely politicising matters in Departments and on boards. A person, even if he or she held the views sincerely, would be perceived to be on one side or the other of the political divide. It is a wise policy that one does not get involved and that the chief executive has his or her job to do and does it to the best of his or her ability. Civil servants have a formal role in advising the Minister, and they can use that. Most of that is now available under the Freedom of Information Act 1997, and people are well able to access it. That is how it should be. The Minister is then the person who must carry the can for the policy, and that is only right. It is not good to mix politics with permanent civil or public servants. I will obviously not accept the amendment.

Amendment, by leave, withdrawn.
Section 29 agreed to.
SECTION 30.

Amendments Nos. 394 to 396, inclusive, are related, and may be taken together. Is that agreed? Agreed.

I move amendment No. 394:

In page 25, subsection (2), line 23, after "with" to insert "or prejudice".

We can conceive of circumstances where it might be consistent with the functions of the council to accept a gift, but at the same time its acceptance could be prejudicial to the functions of the council. I believe that there are provisions similar to this in other Bills. They deal specifically with the issue of prejudice. In the interests of the council and consistency, this amendment should be accepted.

Amendment No. 395 adds a portion. If the council is to receive gifts, it is not unreasonable for the details of those gifts to be set out in the annual report. I have found a similar provision in similar legislation, though I do not have the name of the Bill. We should include the provisions in this too.

The final amendment, No. 396, is obviously dependent on the previous amendments being accepted. It is related to amendment No. 395. I propose it to ensure that the council will be given the power, if it can accept gifts, to make investments in that regard where appropriate. We must get matters right if the council is to be allowed to do that.

I see merit in the amendments personally, but I am advised by the Parliamentary Counsel that these provisions are standard in most Bills when one is establishing bodies and so on. We stick standard provisions into Bills automatically without ever querying them, and it is worth doing so in this case, since there may be such circumstances because of the children with special needs and so on. If the Deputy is prepared to withdraw the amendments, we will consider the matter on Report Stage. She is right that, if we change the provision, we would need to insert safeguards such as the ones that she suggests. There is a possibility, because of the nature of the council's work, that we might be offered gifts and so on that it might be useful and appropriate to accept.

Amendment, by leave, withdrawn.
Amendments Nos. 395 and 396 not moved.
Section 30 agreed to.
Section 31 agreed to.
SECTION 32.

I move amendment No. 397:

In page 26, subsection (4), line 38, after "require" to insert

", including such information necessary to furnish a parliamentary reply".

Many Deputies on all sides would be interested in the accountability of the Minister to provide information. We have this where health boards are concerned, or at least we have had it hitherto. We can ask the Minister questions in the Dáil as regards provision for children with special needs and we get responses, and often action follows as a result of parliamentary questions being tabled because it draws attention to a need. The worry is that when the council is established the particular role of Members will be removed and we will not be allowed to table questions anymore. This has happened on numerous occasions where certain bodies are established outside Departments. The relevant Minister is then no longer responsible to the Dáil and will tell Deputies to seek a response from the Ceann Comhairle. The Minister is no longer responsible for actions being taken and so the question is ruled out of order.

This particular amendment seeks to maintain thestatus quo in so far as parents who wish to get information may do so through the parliamentary question system. At the moment the Minister for Health and Children requests health boards to supply the information to Members, which they do after a period of time. This could be done here as well. The Minister for Education and Science could ask the council to provide the information to Members directly by way of a parliamentary question. In that way we would have accountability. Otherwise the impact of the legislation will be diminished in the absence of alternative safeguards. At present accountability exists and the Department is responsible. We can get responses to parliamentary questions. That is why that is in there.

We discussed this issue last week as well. I do not think many Deputies in the House abuse the PQ system. Sometimes when parents come to one, they try to explain their circumstances without knowing what their child is entitled to. Often the only way of find out what provision is being given to the child, and what it should be, is by way of a parliamentary question. We have seen other bodies such as the National Roads Authority — Deputy Gogarty mentioned a particular Department — from which we can find out absolutely nothing. That is the way the NRA has been set up. It deals with land and roads and involves the public, but this Bill is dealing with vulnerable people in particular. I would not like a situation to pertain where one cannot find out anything apart from questions on the annual report coming before the Dáil once a year. That would not be satisfactory and would not progress matters here. It is not a type of issue that is raised from a political perspective but because people are genuinely coming forward with a need or a difficulty they are experiencing. Unless this is left in, Deputies will find themselves silenced on this issue.

I am advised by the parliamentary draftsman that this is covered in the provision we have here. If information is needed to furnish a parliamentary reply, the council will be obliged to give that. We are discussing something that is totally different to the NRA or anything else, in that the parents are now involved and consulted and are participants in the provision of the services under this Bill. They will be much better informed than any Minister or indeed any Deputy because they will have direct access to the council and will participate in the teams drawing up the individual education plans and so on. I do not foresee any difficulties in that regard on information. My advice, and I am inclined to agree with it in this case, is that the amendment is unnecessary. The matter is covered in the provision that is there already.

If the Minister is saying that the provision will exist under the legislation, he might point out where. If we are requested by parents to ask a parliamentary question with regard to the educational needs or provision for their child, will the situation continue as it is now with the Minister providing that information so there can be a parliamentary response?

I am not saying that. What the Deputy has here is an amendment which would add on to line 38 the words ", including such information necessary to furnish a parliamentary reply". That is included and envisaged in the section as it is. As to the propriety of asking the Minister about an individual case pertaining to the business of the council, off the top of my head I do not know whether or not that is covered by way of a parliamentary reply. I would imagine that day to day workings——

That is exactly the point.

I do not think it will be much good for the council to have Ministers and departmental officials phoning to find out about matters. It is much better that the system is open enough for the parents to be able to get information either directly from the council or through the special educational needs organisers. If the council fails to provide services or whatever in particular circumstances, that would be a legitimate question to be put to the Minister in the House.

The problem is one must again wait until something goes wrong. We are being asked to accept much on faith. I have faith in the legislation and I hope it works, but if we do not press this amendment we are left with no comeback, as such, if matters do not work out as envisaged. I accept what the Minister says about parents now being far more centrally involved. However, I am convinced that parents with difficulties will still approach their Dáil Deputies and seek to have them addressed, because they do not feel adequately represented by a principal, special educational needs organiser or whatever. These things happen right across the board wherever there is State involvement in the day to day lives of people. From that point of view it is important that the amendment be accepted. It comes down to an issue of accountability. I feel strongly the council has to be accountable. I know it will lay annual reports before the Houses, but I do not think that is being sufficiently accountable.

If the council operates with parents and so on as the Minister envisages, there will probably be no need for parliamentary questions and replies. If it does not, however, and parents want to get answers as a last resort, they come to Dáil Deputies from all sides, who table parliamentary questions. That is the case as it is. The Minister proposes that this should be changed and that the information currently available will not now be accessible through the parliamentary system. When parents come to their elected representative and ask whether he or she can find out something, the Deputy is powerless because the reply system will be cut off. This has happened time and again.

I have been told in the past by other Ministers that Dáil reform will sort out all this. God knows when that is going to happen. I want to point out again to the Minister that when the health boards were established, a special provision was put into the Health Acts to ensure that where real human life and death issues were at stake, parliamentary replies would be accepted by the Minister of the day. The health boards were obliged to give a response within a certain time. That works reasonably well. I do not see why something similar could not occur here. If the parents of children with disabilities come to Members of the House and want to get information, having failed to get it any other way, the Minister should have a provision in this Bill to allow parliamentary questions to be asked and for a response to be given through that system. It is reasonable. Otherwise we are regressing. Parents will come to us as Deputies and we will say we cannot do anything: we cannot make a representation to anybody because the council is totally independent. That is not the direction in which we should be going in a democracy. When replies are forthcoming people do not respond in a vexatious manner for something as serious as these issues. Sometimes, as the Minister knows, if a parliamentary question is tabled, the officials concerned will contact a Deputy directly and intimate that if the question is withdrawn the information will be made available. It is a last resort. If the Minister removes it by now allowing this, we will be going backwards.

The special education council which will be child-centred and will open up the system to parents and so on will deal with these cases in the future. It is not appropriate that a Deputy would or should have to take the route of parliamentary question to obtain information on the location of a file within the special education council. It is perfectly legitimate if Deputies or parents cannot get information from the council that he or she table a question to the Minister to find out what is happening within the council that questions are not being answered. I do not agree with the Deputy that people will first try to get the information from the special education council if the route of parliamentary question is open to them. Many Deputies would not do that and I have experience in that regard.

The information regarding schools building projects is currently available on our website yet we receive thousands of questions on where people can obtain information regarding particular school building programmes.

In fairness, most of the questions relate to when such buildings will be commenced. The answers given are in reply to the questions asked.

People would know, if they read the building programme that it states clearly the position regarding particular buildings in a current year. Asking a parliamentary question does not change the position. I am unable, for that reason, to accept the amendment.

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

  • Crowe, Seán.
  • Enright, Olwyn.
  • Gogarty, Paul.
  • O’Sullivan, Jan.
  • Stanton, David.

Níl

  • Andrews, Barry.
  • Brady, Martin.
  • Curran, John.
  • Dempsey, Noel.
  • Dempsey, Tony.
  • Finneran, Michael.
  • Smith, Brendan.
Amendment declared lost.
Section 32 agreed to.

Amendments Nos. 398 to 400, inclusive, are related and may be discussed together, by agreement. The amendment No. 398 to be moved is in substitution for amendment No. 398 on the principal list of amendments of 5 January 2004.

I move amendment No. 398:

In page 26, before section 33, to insert the following new section:

"33.—The Minister shall by order or orders appoint a day to be the establishment day for the purposes ofsections 17 and 34 and the day that is so appointed for the purposes of one of those sections may be different to that which is so appointed for the other of them.”.

In tabling this amendment, I was conscious that the appeals board cannot be effective until such time as a substantial number of the Bill's provisions are commenced whereas the council can be effective immediately. As Deputies will be aware, the Bill provides in section 21 for a maximum five year implementation period, which we spoke about earlier. I am aware that many people have expressed the view that this might be very long and I have undertaken to re-examine the matter. We are putting in place a very strong rights-based approach to the provision of education to children with educational disabilities. We must accept that given where we are at present, this process will take time. I acknowledge that Members on all sides of the Houses would wish it could be done sooner, but we must face reality. The council will be put in place almost immediately. In fact, the council is in place under the Education Act which means there will be no loss of time. The body as it exists under the Education Act will be transposed into the council under the Bill before us through amendment No. 424.

The substitute amendment to my amendment No. 398 corrects an error in the original text. The reference to section 27 should have been a reference to section 17. The amendment is technical in nature.

I understand the Minister's amendment and I do not have any great difficulty with it. I wish to refer to amendment No. 399 which seeks to provide in the Bill that the establishment date would be within one year of the passing of the Act. It is important to put in place timeframes like this as the provisions as they stand are very general. In section 21, we already have reference to a five year period from the establishment date in which the full implementation will take place. As we have quite a long period of time in that section, it is important to introduce a specified time as to when the Act will commence.

In support of amendment No. 399, I will not move amendment No. 400.

The fact is that the council is up and running and will be transposed. I have no problem with accepting amendment No. 399. If it is good form and gets us through some more amendments at the end, we will take it.

I move amendment No. 1 to amendment No. 398:

In the third line, after "shall" to insert "within one year from the passing of this Act".

Amendment to amendment agreed to.
Amendment, as amended, agreed to.
Amendments Nos. 399 and 400 not moved.
Section 33 deleted.
SECTION 34.

I move amendment No. 401:

In page 27, subsection (3), between lines 12 and 13, to insert the following:

"(c) the Appeals Board performs its functions in accordance with the policies referred to in section 12(2),”.

Amendment agreed to.

I move amendment No. 402:

In page 27, subsection (3)(c), line 15, after “Board” to insert “, unless the parents of the child concerned otherwise agree”.

This amendment refers to the consent of the child's parents. I would like to hear the Minister respond.

I agree with the Deputy's aim but I wish to take advice on the wording from the draftsman. I agree with the principle of the amendment and we will make a similar one on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 403:

In page 27, between lines 19 and 20, to insert the following subsection:

"(6) The Minister, in appointing the membership of the Appeals Board, shall have regard to the desirability of including a person or persons who experience special educational need or needs.".

A similar amendment was accepted by the Minister earlier. Perhaps he is still in good humour and will accept this one also.

I am not accepting this amendment. The members of the appeals board will be specialists and it may not be appropriate to include an amendment of this type in the legislation. The amendment is not quite the same as the one I accepted earlier. We are speaking in this instance about a very small group of people.

Amendment, by leave, withdrawn.

I move amendment No. 404:

In page 27, between lines 19 and 20, to insert the following subsection:

"(6) The chairperson and ordinary members of the Council shall be appointed by the Minister from among persons who have a special interest in or knowledge of education and in particular the education of persons with disabilities, or the law.".

The most significant problem I have concerns the appeals board as it stands. This amendment is an attempt to strengthen the legislation. The appeals board will be the last resort for many of the stakeholders involved in this area and those who go before it will wish to see their rights vindicated. They will also wish to know that those sitting in judgment know what they are talking about. For that reason, my amendment seeks to provide that members will have experience.

Teachers and principals will hope there is someone on the appeals board who knows what it is like to run a school. Parents with children with special needs will also hope to have an advocate who understands their perspective. The Minister may say that this amendment's provisions can be taken as read, but they are not stated. I do not know if this amendment is helpful or unhelpful, but I am trying to strengthen the legislation by ensuring that the people appointed to the board meet certain minimum requirements.

I will have a look at it. As it is, the amendment does not make sense because it refers to the council when it should refer to the appeals board.

Yes, it should.

The Deputy had me puzzled. I will consider it for Report Stage but the same applies as stated earlier — persons who do not have a knowledge of education will not be appointed.

I accept that.

I will see if we can find a wording that would accommodate that requirement.

Amendment, by leave, withdrawn.

I move amendment No. 405:

In page 27, between lines 19 and 20, to insert the following subsection:

"(6) The Minister shall ensure that a minimum of 40 per cent of the membership of the Board shall be female.".

This amendment relates to the appeals board. I may raise it on Report Stage.

Amendment, by leave, withdrawn.
Amendments Nos. 406 and 407 not moved.

I move amendment No. 408:

In page 27, subsection (6), line 20, after "chairperson" to insert "shall be appointed by the Government".

The reason I tabled this amendment is that the original Bill, which was withdrawn, stated that the chairperson of the appeals board shall be appointed by the Government and shall be a practising solicitor or barrister of not less than seven years standing. I did not include the part about the solicitor and barrister in my amendment. I am interested to hear the reason it was changed.

I believe that appointments of this kind to a statutory board are more properly the responsibility of the Minister with direct responsibility for the matters at issue. He or she would be the person most familiar with what is needed in the area, rather than the Government. It is self-evident why I would not confine the chair of the board to members of the legal profession, with all due respect to those present.

Maybe it would have more status if it were appointed by the Government as opposed to the Minister.

I would be more curious as to why the solicitor or barrister, of seven years standing, was included.

I was curious about that as well. Perhaps there is a need for some legal expertise when dealing with appeals as opposed to original decisions.

Maybe the parliamentary draftsman-——

The parliamentary draftsman would probably recommend that we should not say that. We need him for Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 409 in the name of Deputy Gogarty was dealt with.

I do not think so.

It was discussed with amendment No. 365. Amendment No. 364 was not moved.

I had not intended to say much, except that amendments Nos. 409 to 411, inclusive, should be taken together.

They were taken together.

I move amendment No. 409:

In page 27, subsection (6), line 21, after "Minister" to insert "from a panel nominated by all organisations representing parents, teachers, the Department of Education and persons with educational disabilities and in consultation with same".

I do not intend to press the amendment. The Minister knows where people are coming from.

Amendment, by leave, withdrawn.
Amendments Nos. 410 and 411 not moved.
Section 34, as amended, agreed to.
SECTION 35.

I move amendment No. 412:

In page 27, subsection (1), lines 40 and 41, to delete all words from and including "Minister" in line 40 down to and including "directs" in line 41 and substitute the following:

"Minister—

(a) in the case of the first such report, at the end of 1 year after the establishment day, and relate to the Board’s activities and proceedings under this Act during that year, and

(b) thereafter, at the end of 1 year following the preparation of the preceding report, and relate to the Board’s activities and proceedings under this Act during the preceding 12 months”.

This is a straightforward amendment. I am sure the appeals boards publish an annual report. There is no need for a long discussion on it as it is similar an earlier amendment.

I want to consider the issues raised in this amendment for Report Stage. With your permission, Chairman, I wish to indicate the same for amendments Nos. 414 and 415.

Amendment, by leave, withdrawn.

I move amendment No. 413:

In page 27, subsection (1), lines 40 and 41, to delete "at such intervals as the Minister directs" and substitute "not later than the 31st day of March in each year in respect of its activities in the preceding year".

This amendment raises the same point, that of an annual report.

Amendment, by leave, withdrawn.

I move amendment No 414:

In page 27, subsection (1), line 40, after "intervals" to insert "but at least once a year and in such a manner and format".

Amendment, by leave, withdrawn.

I move amendment No. 415:

In page 27, after line 43, to insert the following subsection:

"(3) The chairperson shall, whenever required to do so by a Committee (or a subcommittee of such a Committee) appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas (other than the Committee on Members' Interests of Dáil Éireann or the Committee of Members' Interests of Seanad Éireann) to examine matters relating to the Department of Education and Science or to special educational needs, give evidence to that Committee on the performance by him or her of his or her evidence to that Committee on the performance by him or her of his or her duties in relation to the functions of the appeals Board under this Act.".

The Minister indicated he would consider the matter raised in this amendment. It relates to the chairperson of the appeals board who could be called in. He or she is separate from the council and will have a separate function. Up to now the council could be called in but not this group. I am anxious that it would also be accountable to the committee.

The Minister has indicated that he is considering the amendment for Report Stage.

Amendment, by leave, withdrawn.
Section 35 agreed to.
SECTION 36.

Amendment No. 416 may be discussed with amendments Nos. 417 to 419, inclusive, by agreement.

I move amendment No. 416:

In page 28, subsection (3), lines 12 to 16, to delete paragraphs (b) and (c).

These four amendments are similar. The hands of a board should not be tied too much in terms of a request being made. For that reason I suggest paragraphs (b) and (c) be deleted. If a request is made, it should be dealt with rather than people pre-empting its nature.

Section 36(3)(c) implies that a health board could manage its resources in such a way that it would not have to comply with a request. There would be an out for the health board or whatever structure takes the place of the health boards. Given that the Minister has already acknowledged that sometimes the level of communication between different agencies has not been what it should have been, it would be easy for a board to manage its resources in such a way that it could have an out. Paragraph (b) is similar. I am aware the appeals board can come in. I am curious about those two paragraphs.

I have one example from my experience of the autism team in one health board which has designated the exact staff its needs, speech therapists, occupational therapists and so on. Even though it has outlined what it needs for the past three years, little or no effort has been made to provide those staff, although the board has some budget for same and has not used it. If it is left up to the board in this way, very little will be done and people will still fall between education and the health board, or whatever structure will replace them. The health boards are being given an out and I would like what they have to do under this Bill to be made concrete.

I agree with what has been said. This gives a health board an excuse to use resources when, presumably, it already has the same coverage on resources as everyone else. It is a double out for a health board.

We have previously discussed the matter of the health boards and the interplay that will exist between them. Obviously, they have a key role to play to ensure this legislation is effective when in place. One of the key objectives of the legislation is to ensure that the legal duty and responsibility of the boards to carry their share of the responsibility is clear and unequivocal. That is what we are trying to do. The provision of any service, by anybody, public or private, can never be guaranteed in every circumstance because practical difficulties inevitably arise. The Bill is trying to accept the reality of life and seeks to minimise the potential for difficulties. We cannot legislate out of existence the fact that difficulties may arise. We would be dishonest if we did not accept the fact that difficulties may arise. There will be occasions where the boards will have difficulties. All the section does is acknowledge that up front and honestly.

As the Deputy will see, the Bill specifically safeguards against the boards putting up insubstantial grounds for failure to co-operate and the independent appeals board will have a special role in ensuring that does not happen. On the one hand, we are acknowledging that difficulties may arise but on the other we are saying they have to be real and substantial. They cannot shift money from one area, which was the example given by the Deputy, and say they do not have money for special needs. The balance in the section is right in that it acknowledges this while also ensuring an independent appeals process and that they cannot get away with sham excuses.

I understand what the Minister is saying but health boards manage their budgets on an annual basis and if they find they either do not have the resources or do not want to use them for a particular year they can deliberately use this system. I accept there is an appeals mechanism but if they wanted to they could dispute almost every case and let them go to the appeals board. Many cases would come before the appeals board, it would take it a long time to deal with them and issues would be delayed for a longer period than we would probably envisage in examining the Bill now. Will the Minister consider changing that in some way? I have a particular difficulty with the resources aspect. It will be more difficult for the boards to argue paragraph (b) than (c).

Part of the reason for this wording is that the health boards operate under a statutory remit, which means they cannot exceed their budgets in any one year. I will examine the matter with a view to tightening it to ensure there is the appropriate level of priority. The Minister for Health and Children has an obligation to prioritise for special needs but perhaps we can filter that down somewhat to the health boards.

Amendment, by leave, withdrawn.
Amendments Nos. 417 to 419, inclusive, not moved.
Section 36 agreed to.

As it is 7.30 p.m., we must conclude.

If members do not mind, I will proceed for another 15 or 20 minutes.

Is that agreed? Agreed.

If we run into a particular problem, we can stop at that stage.

Section 37 agreed to.
SECTION 38.

Amendments Nos. 420 and 422 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 420:

In page 28, subsection (1)(a), line 40, to delete “children” and substitute “persons”.

Section 38 states that the role of the council in respect of record keeping applies only to children. In fact, the council should have a wider role than this and should maintain records in respect of all people who are in receipt of special educational and support services. In this way, the most comprehensive records of such provision can be maintained. Amendments Nos. 420 and 422 will ensure that.

Amendment agreed to.

I move amendment No. 421:

In page 28, subsection (1), between lines 41 and 42, to insert the following:

"(b) identifying children and students to whom special educational and support services are not being provided,”.

The purpose of the amendment is to strengthen this particular section in terms of identifying children to whom special educational and support services are not being provided. The section is adequate but this category of children, to whom services are not being provided, has been left. I ask that a record be kept of those children, which would strengthen the section.

We cannot impose a duty on the council to keep records of people they are not looking after. We can argue whether the council should be looking after them but it would not be practical because it would not be aware of them. The council could devote much time and resources to finding out who is not included. It is more a duty for the health board than anything else. Originally the Bill contained a proposal for a register and a database of people with disabilities but many of the disability groups did not want that because they felt it might stigmatise them. I understand the Deputy's intention but I do not——

There needs to be some sort of tracking and I am not sure the health boards are the ideal bodies to do that.

When a child is born there are procedures to be followed, with public health nurses calling to the home and so on. They are the bodies which have the first contact and they would indicate whether a child had particular special needs or disabilities. They are the more appropriate bodies to collect this data and feed it into the council rather than the other way around. The council is not the appropriate body to do that.

Will the Minister re-examine the matter to determine if they could be included in some other section? The Minister says the health boards are the most appropriate body. Perhaps they are but from my dealings with the health boards I do not believe they are up to the task.

Currently I would not disagree with that assessment.

Is there any other way to do this? The reason I included the council in the amendment is that at least some body would be monitoring those children who are outside the system.

Not in this Bill.

Amendment, by leave, withdrawn.

I move amendment No. 422:

In page 28, subsection (1)(b), line 43, to delete “children” and substitute “persons”.

Amendment agreed to.
Question proposed: "That section 38, as amended, stand part of the Bill."

The section states: "The Council shall keep and maintain records for the purposes of identifying children to whom special educational and support services are being provided ...". Does this mean that when these services are no longer being provided, records are destroyed or not kept beyond that time?

The records will be kept. In the discussion earlier we said we may need to make provision for them to be passed on to health boards and so on.

Is there a need to include a clause to the effect that they will be kept for a certain time or that they are to be kept indefinitely because the section specifically refers to identifying children to whom special educational and support services are being provided? That would imply that if they are no longer being provided, the records would not be kept and maintained. We might have to change the wording to read "are or were being provided" or something along those lines.

The phrase "keep and maintain records" covers that but I will check it for the Deputy. The word "maintain" implies that it is ongoing. The provision under section 38(2) covers it also. It states: " ... the Council shall, to the greatest extent practicable, co-ordinate its system of record-keeping with the systems of record-keeping maintained by health boards and any other relevant public bodies". It is an ongoing process but I will check it because it is an important point.

Obviously the Data Protection Act applies here as well.

Absolutely.

Is there a time limit after which records would not be kept in the event of someone dying? Is that necessary or are they kept indefinitely?

That is covered under the Data Protection Act. Records are to be kept for as long as they are needed for the purposes for which they were gathered.

Question put and agreed to.
SECTION 39.
Question proposed: "That section 39 stand part of the Bill."

This section has to do with the Minister making regulations. Is subsection (2) affected by the recent High Court case where ministerial regulations were questioned or were deemed to be unconstitutional?

It would be if I were to try to introduce regulations which a judge subsequently decides should be the subject of primary rather than secondary legislation. They would be affected in that way. I am not a legal expert, but if one were to try to do something that is not provided for elsewhere in the Bill by way of regulation, one would be in difficulty at this stage.

There are other parts of the Bill in respect of which ministerial orders and regulations could be made. Has the Minister more or less proofed the Bill to ensure that it does not fall foul of the provisions of the latest constitutional decision by the courts? If not, will he do so before Report Stage, as we do not want to be back here debating the Bill in a few months time?

The Attorney General's office usually prepares those on their receipt from the Parliamentary Counsel.

That decision is very recent.

We can do that.

Question put and agreed to.
SECTION 40.

I move amendment No. 423:

In page 29, line 22, to delete "he or she, with the consent of the Minister for Finance, determines" and substitute "may be necessary".

This amendment relates to a rehash of an earlier argument concerning amendment No. 214 and the limited scope we have to interfere in terms of anything to do with finance. I will not enter into a long debate on it. I ask the Chairman to put the amendment but I will not press it to a full vote.

Amendment put and declared lost.
Section 40 agreed to.
Section 41 agreed to.
NEW SECTIONS.

Amendments Nos. 425 to 428, inclusive, are related to amendment No. 424 and they may be taken together by agreement.

I move amendment No. 424:

In page 29, before section 42, to insert the following new section:

"42.—(1) The National Council for Special Education (referred to in subsequent sections of this Act as the 'former Council') established by order under section 54 of the Act of 1998 is dissolved.

"(2) References to the National Council for Special Education in an enactment (other than this Act) or in an instrument made thereunder or in the memorandum of association or articles of association of any company (within the meaning of the Companies Acts 1963 to 2001) or any other legal document, shall be construed, on and after the commencement of this section, as references to the Council.".

This amendment relates to the technical transformation of the National Council for Special Education, as it already exists, into the council for the purposes of this Act. These amendments are usefully grouped together. The council was established at the beginning of the year as an executive agency under the Education Act. Some of its staff have been appointed. I attended its first meeting on Monday night.

Amendment No. 424 provides for the dissolution of the body established under the Education Act when the council comes into place. Amendment No. 425 is a technical one which ensures that any legal proceedings pending at the time of the dissolution of the Education Act will continue against the council established under this legislation. Amendments Nos. 426 and 427 provide for the transfer of all assets, rights, liabilities and contractual obligations from the body established under the Education Act to the council. Amendment No. 428 provides for the transfer of staff from one body to the other with the preservation of the existing terms and conditions. When reviewing the final draft of the Bill, it was thought that we could end up with two councils operating side by side and these amendments are to overcome that difficulty and to ensure continuity in that regard.

Amendment agreed to.

I move amendment No. 425:

In page 29, before section 42, to insert the following new section:

"43.—Where, immediately before the commencement of this section, any legal proceedings are pending in any court or tribunal to which the former Council is a party, the name of the Council shall be substituted in the proceedings for that of the former Council or, as the case may be, such trustee or agent thereof, or added in those proceedings as may be appropriate, and those proceedings shall not abate by reason of the substitution.".

Amendment agreed to.

I move amendment No. 426:

In page 29, before section 42, to insert the following new section:

"44.—(1) The following shall be and are, by virtue of this section, transferred to the Council—

(a) all property and rights relating to such property held or enjoyed immediately before the commencement of this section by the former Council or any trustee or agent thereof acting on its behalf,

(b) all liabilities incurred before such commencement by the former Council or any trustee or agent thereof acting on its behalf that had not been discharged before such commencement,

and, accordingly, without any further conveyance, transfer or assignment—

(i) the said property, real and personal, shall, on such commencement, vest in the Council for all the estate, term or interest for which, immediately before such commencement, it was vested in the former Council but subject to all trusts and equities affecting the property and capable of being performed,

(ii) those rights shall, as and from such commencement, be enjoyed by the Council, and

(iii) those liabilities shall, as and from such commencement, be liabilities of the Council.

(2) All moneys, stocks shares and securities transferred to the Council by this section which, on the commencement of this section, are standing in the name of the former Council or any trustee or agent thereof shall, upon the request of the Council, be transferred into its name.

(3) Every right and liability transferred to the Council by this section may, on or after the commencement of this section, be sued on, recovered or enforced by or against the Council in its own name and it shall not be necessary for the Council to give notice to the person whose right or liability is transferred by this section of the transfer.".

Amendment agreed to.

I move amendment No. 427:

In page 29, before section 42, to insert the following new section:

"45.—Every bond, guarantee or other security of a continuing nature made or given by or on behalf of the former Council to any person or given by any person to and accepted by or on behalf of the former Council and every contract or agreement made between the former Council or any trustee or agent thereof acting on its behalf, and any other person and in force but not fully executed and completed immediately before the commencement of this section shall continue in force on and after such commencement and shall be construed and have effect as if the name of the Council was substituted therein for that of the former Council or, as appropriate, any trustee or agent thereof acting on its behalf, and shall be enforceable by or against the Council.".

Amendment agreed to.

I move amendment No. 428:

In page 29, before section 42, to insert the following new section:

"46.—Every person who, immediately before the commencement of this section, is an employee of the former Council shall, on such commencement, become and be an employee of the Council and the rights and entitlements in respect of tenure, remuneration, fees, allowances, expenses and superannuation enjoyed on the commencement of this section by the person shall not, by virtue of the operation of this Act, be any less beneficial than those rights and entitlements enjoyed by that person immediately before such commencement.".

Amendment agreed to.
Sections 42 and 43 agreed to.
NEW SECTION.

I move amendment No. 429:

In page 30, before section 44, to insert the following new section:

"44.—Section 2(1) of the Act of 1998 is amended by substituting the following definition for the definition of 'disability':

‘"disability" means, in relation to a person, a restriction in the capacity of the person to participate in and benefit from education on account of an enduring physical, sensory, mental health or intellectual impairment (including any impairment of the capacity to learn that may be prescribed from time to time);'.".

The amendment is not agreed.

Does the Minister wish to comment on the amendment?

We discussed it earlier.

We expressed our dissatisfaction with the change in the definition of "disability". In this amendment the Minister is changing the definition of "disability" in the 1998 Act. I have the same difficulty with the definition proposed as I stated earlier. I have a bigger difficulty with the definition of "disability" in the 1998 Act being changed because that would remove rights people had under that Act. I refer to people with dyslexia, dyspraxia and other conditions who feel they are not included under the definition. The rights they had under the 1998 Act would be removed if this amendment is inserted.

This amendment was discussed in the context of an earlier amendment and I do not want to debate it again. However, the Minister may find that the definition might need to be amended at some stage down the line. There is no point in rehashing the argument. I will oppose the amendment, but I will not press it to a vote, although I do not know what my colleagues will do.

Amendment put and declared carried.
SECTION 44.
Amendment No. 430 not moved.

I move amendment No. 431:

In page 30, subsection (2), line 6, to delete "shall come" and substitute "comes".

This is a technical amendment.

I will check that with the Parliamentary Counsel.

I will withdraw the amendment on that basis.

Amendment, by leave, withdrawn.

I move amendment No. 432:

In page 30, subsection (2), line 6, after "days" to insert "not later than 3 years from the passing of the Act".

This amendment provides that the Act should come fully into operation three years from its passing. The Minister might consider that time factor when considering other time provisions.

I will withdraw the amendment on that basis.

Amendment, by leave, withdrawn.
Amendment No. 433 not moved.
Section 44 agreed to.
First and Second Schedules agreed to.
TITLE.

I move amendment No. 434:

In page 5, line 10, to delete "DISABILITIES" and substitute "SPECIAL EDUCATIONAL NEEDS".

We discussed this proposal at the start of the debate and points were made about the overall thrust of the Bill. We have come a long way in discussing the Bill in terms of changing the negative to the positive and have improved the Bill. Some groups who appeared before this committee had a difficulty with the title of the Bill. The Minister has uniquely coined the term "educational disability" in the literature and research, as it does not exist elsewhere; he has created this legal term. It is linked to the fact that the bill is titled "Education for Persons with Disabilities Bill". We were endeavouring to amend the title to include the words "special educational needs". We defined "special educational needs" in the Bill differently, linked to people who were disabled. We made a point about people being disabled through the structures that were in place rather than the impairments they have. That is the thrust of the amendment, but I do not believe the Minister will accept it.

I indicated that we will have a look at this proposal in the context of the overall Bill, but the caveat is included that "special educational needs" could also mean other people. I will examine it, as I indicated previously.

We will withdraw the amendment.

Amendment, by leave, withdrawn.
Amendments Nos. 435 to 441, inclusive, not moved.

I move amendment No. 442:

In page 5, line 24, after "AS" to insert "AN CHOMHAIRLE NÁISIÚNTA UM OIDEACHAS SPEISIALTA OR IN THE ENGLISH LANGUAGE".

Amendment agreed to.
Amendment No. 443 not moved.
Title agreed to.
Bill reported with amendments.