Education for Persons with Disabilities Bill 2003: Committee Stage (Resumed).
SECTION 3.
Debate resumed on amendment No. 57:
In page 7, subsection (4), line 43, after "student" to insert "as outlined insubsections (2), (3) and (4) of section 7”.
—(Deputy Crowe).
The effect of this amendment is to ensure that the education plan for a student is laid out according to the process outlined in section 7. The development and implementation of the education plan is essential to the legislation. It is my understanding that there are two methods for preparing an education plan and one seems more thorough than the other.
The amendment calls for the workload of the formulation of the education plan to be moved from the principal to the special educational needs officer. The SENO should be given responsibility for putting the plan together, involving the parents and the team of professionals he or she wants to create. Under section 3, the principal is expected to consult with other people but, essentially, draw up the plan by him or herself. The SENO, under section 7, draws up a team of people to assist in the creation of the plan and the principal is also expected to identify the persons necessary for the consultation. Section 7 is far clearer about who should be involved.
According to section 7(3)(d) parents can, with the consent of the organiser, nominate other people to join the team. This allows the parents to bring people with whom they might feel more comfortable into the process. Under section 3, as it stands, the parents have no right to bring anyone into the process of creating the plan. The only person who has such a right is the school principal. This is unacceptable. This is my understanding of the section. I look forward to hearing the Minister’s response.
Section 3(5)(b) states that the principal shall comply with the guidelines for the creation of the plan as set out in section 8(3) “unless he or she decides, with the consent of the special educational needs organiser, that there are good and substantial reasons for their not being complied with”. Again, the parents are not consulted nor is their consent requested when the principal decides that the plan will not conform to the guidelines. This can be contrasted with section 7 and the process for the creation of the education plan where the parents are centrally involved from the start. Section 7 also explicitly states that the child can be involved in the creation of the education plan, something not mentioned in section 3.
The education plans created under section 3 have been described as prefabricated plans created under the guidelines in section 8(3) while the process in section 7 is more appropriate to the creation of individual plans. The explanatory memorandum seems to imply this is so, saying that section 7 "provides for the more formal planning process, intended for children whose needs are more complex" while section 3 provides for more straightforward and off-the-shelf plans. Perhaps I am reading the section wrong. There appears to be two different sets of plans with one being more clearly laid out than the other.
This comes back to the issue we debated yesterday of to what extent should the school based plan exist at all. If it must exist, then how extensive should it be? That is the nub of the issue raised. Deputy Crowe's amendments relate to whether we should have a fully fledged assessment and plan on the same scale under section 3 as that required under section 7. We have already debated that issue. One of the crucial elements is that if a child is to have a school based plan under section 3 rather than the more advanced plan under section 7 then the parents would have to be happy that it was appropriate for their child. There is a great deal of confusion in operating the two systems side by side. I would prefer more clarity from the Minister on what he envisages will be the relationship between sections 3 and 7 and other relevant sections.
It might be useful if the Minister could clarify what will be contained in an education plan. We do not have a description of such plans though I know guidelines will be issued in that regard. Some commentators have suggested that the plans are failure based, that the child must first fail before a plan is initiated for him or her. Perhaps the Minister will outline what might be contained in the plans. Also, he might clarify who will put such plans together. The Bill states that the principal must call for the plan to be prepared. What does that mean? Who will do it?
We debated the issue of principals teaching full time. As 75% of them teach full time, they would not have the time to draw up such plans; neither would the teachers. The Minister said he does not wish the special needs organiser to be snowed under with work, so he or she cannot get involved in the initial stages. Who will draw up such plans? When the plan is drawn up, how will it be monitored? The Bill refers to a child meeting the aims of the plan. This goes back to our discussion yesterday about trying to make a child fit a plan and not the other way around. That is a failure based model from which we would all like to get away. Perhaps the Minister will give us some information in that regard.
I agree with what has been said on this matter. My amendment No. 68 seeks to strengthen the theme and to put an onus on the special education needs organiser. The vote taken yesterday indicated the Minister's position on the role of the principal versus that of the special education needs organiser. I will not say too much about that for now except that I hope the Minister has taken on board the comments made yesterday on the role of the principal and will come up, on Report Stage, with something a little more amenable to principals, 75% of whom are working principals.
I may not push this matter to a vote because we know it is a foregone conclusion.
We are discussing amendmentNo. 57.
I know. Amendment No. 68 is taken in the same grouping. I will not push that amendment to a vote but I hope the Minister will take the principle of it on board.
I support amendment No. 57. We all agree the education plan is a vital cog in assisting any child with a disability. One must have a plan or a strategy to deal with oral language, personal development and reading skills.
It is also important that parents' views are heard when drawing up plans. When the parent sits down with the special needs organiser his or her views must be listened to. We must focus on what such plans are about. The education plan, as far as I am concerned, relates to the needs of the child. It is essential we focus on that point. I agree with Deputies that there is confusion about the plans and the Minister should clarify the matter.
On education plans and the debate we had about teaching principals, I received a call at 8.30 a.m. from a teaching principal who expressed concern about our debate yesterday. Principals are telling us they have heavy workloads and do not wish to spend the rest of their lives dealing with more bureaucracy. I accept they must be involved in educational plans. The message is that class teachers and principals do not wish to spend their lives writing reports and documents or being involved in meetings with teachers and other officials and spending less time teaching. In fairness to the Irish education system, our teachers and teaching principals spend more time with pupils than their counterparts internationally. We should not take our eye off the ball in that regard. The amount of time spent by Irish teachers in teaching children about literacy is way ahead of that in other countries. I would not like us to lose that.
We had most of this debate yesterday when I made my views known and gave my reasons for those views.
I accept what Deputy McGrath had to say about the amount of time spent by principals teaching and about the Irish primary school system in general. There is a fundamental difference between our primary school education system and that of other places in Europe in that we have, per head of population, more primary schools than any other country. We have approximately 3,500 primary schools, some of which are one and two teacher schools. The reason 75% of our school principals teach is that more than 50% of our schools have less than four classrooms. That is the reality. It is a good idea that principals spend some time in the classrooms and keep in contact with what is happening there in terms of pedagogical trends and so on.
Some time ago, I put it to principals and managers that if they wished to have principals removed from the burden of paperwork we could consider appointing office managers in cluster schools. A number of managers could then undertake much of the paperwork. That did not find too much favour with principals. I cannot make all 3,500 principals non-teaching principals even if there are only two classes in the school. That is not a reasonable approach to the problem.
The fundamental difference between section 3 and section 7 plans is simple. One plan is school based; it is the result of observations of teachers or the principal or a combination of both or it may be the result of consultations with parents about the progress of the child. Essentially, it arises as a result of something which was not obvious at the start of the child's time in school. Section 3 is designed to cater for this type of scenario. It highlights the importance of teachers deploying the full range of their professional pedagogical skills for children experiencing learning difficulties within the system prior to deciding that the child has such a complex learning difficulty that he or she needs to go for a full section 7 type assessment.
In section 3 type assessments we are talking about a "relatively straightforward difficulty" a child might have. I mentioned dyslexia in this context and I am aware there are ranges of difficulty within the various types of difficulty. We are talking about a difficulty that arises in school which is spotted by the teacher. Initially, if the school or principal forms the opinion that it can be dealt with through the school's range of services then they put the services in place and monitor how they succeed. If they do not succeed, it is obviously more complex and they move to a section 7 assessment. The parents would be consulted about this but if parents are not satisfied with the plan drawn up within the school to tackle the particular difficulty they can appeal it. The appeal can be heard independently and a decision made on it.
Deputy Crowe, I think, said that one type of assessment looks as if it is done locally and may not be thorough and that the second is a more thorough process. He is right that the second section 7 process is the more complex. However, the section 3 process should not be any less thorough. The section 7 process reflects the fact that it has been decided that the child's problem is more complex than at first thought and that is the reason the full range of skills, psychologists, medical doctors, if necessary, and the parents are more formally brought together in a team to address the problem. There could be a variety of difficulties such as learning, medical and psychological difficulties and all the experts would be brought in on the matter. The initial process observed in the school would be less complex and is for problems capable of being dealt with at school level. If they are not capable of being dealt with at school level we move on to the second process. Both plans should be thorough.
A question was asked about the plans and their content. It is clearly laid out in the Bill that the content will depend on the child, the disability, the problem and the abilities of the child. A child may have a reading disability but may be very good at mathematics. The ability and strengths of the child must be taken into account as well as the particular difficulty. It would not be possible for me to say such and such would be in an education plan. Each education plan is different. Section 8 includes details about the content of a plan and the general areas a plan must cover.
Even in a school based plan, the council guidelines will be in place and the special educational needs organiser, SENO, will be consulted in the preparation of the plan as stated in section 3(5). We are trying to offer the maximum amount of help within the school to prevent children being labelled early on, perhaps because of a reading difficulty, as dyslexic or suffering from a mental deficiency or something similar, without a proper assessment. Most teachers support the idea that where children have a problem they are offered learning support from the resource teachers first to see how they respond before removing the child from the class for help. All is fine if the plan put in place by the school works but if it does not work we must go to the more formal assessment process.
There was a question about whether parents are involved or if the plan is school based. The rights of parents to be consulted during the preparation of a plan is guaranteed in sections 3(5) and 7(3). Another question concerned monitoring. Teachers are the people who should monitor the situation because they are in the school attended by the children. The principal would also have an overseeing role. The plan lays out specific targets over a school year. At the end of that period progress should be measured. If progress has not been made in accordance with the potential and capabilities of the child, the plan needs to be revised or reviewed. The plan should proceed to its second year where progress has been made and it is obviously working.
In amendment No. 57, by seeking the inclusion of the words "as outlined in subsections(2), (3), and (4) of section 7” in section 3(5), Deputy Crowe is looking for parental involvement. However, this is catered for under section 7(3). The other question about education plans is covered in section 8.
Amendment, by leave, withdrawn.
Amendment No. 58 not moved.
I move amendment No. 59:
In page 7, between lines 44 and 45, to insert the following subsections:
"(5) Where the principal of a school is of the opinion, having regard to any guidelines that may be issued by the Council from time to time under subsection(7), that the arrangement of an assessment under subsection (2) of a student is not practicable he or she shall request the Council to arrange for an assessment of the student under section 4.
(6) If the Council accedes to a request under subsection (5), section 4, with the necessary modifications, and section 5 shall apply accordingly.
(7) The Council may from time to time issue guidelines to principals of schools as to the matters they shall have regard to before forming an opinion of the kind referred to in subsection (5)”.
Amendment agreed to.
Amendments Nos. 60, 63 to 66, inclusive, 68 and 69 are related and will be discussed together by agreement. Is that agreed? Agreed.
Amendments Nos. 60 to 62, inclusive, not moved.
I move amendment No. 63:
In page 7, subsection (5), line 46, after "principal" to insert ", acting in partnership and in consultation with the parents of the child".
Amendment No. 63 is in the name of Deputy Stanton. It is similar to amendments we discussed yesterday but for some reason was not grouped with them.
I think it is provided for in section 3(5)(a). It was the manner in which it was phrased. We thought it was better for it to be inserted at the beginning. The difference it makes is that the parents and not just the principal would be involved in ensuring that the other experts would be consulted. It is a question of six of one and half a dozen of the other. I think the wording proposed in the amendment would be preferable but it does not make a great difference.
If the Minister is not inclined to accept the amendment, I will not press it. Perhaps he would examine it because it ensures that the parents are involved when the principal is considering who should be consulted. I know the parents are consulted but the amendment would ensure that they would be involved in the decision as to who is to be consulted. There is a subtle difference and it may not make a significant difference but it may improve the situation slightly. The Minister may wish to comment on the amendment before a decision is made. Amendments Nos. 63 and 65 are dependent on each other.
Amendment No. 69 deals with the parents of the child. Our amendment suggests that the parents should be involved in the decision. The Bill does not seem to provide a mechanism for the parents to be involved in waiving the guidelines under section8(3). The insertion "and the parents of the child" means that the parents would also be consulted if guidelines put in place by the council were to be set aside. The Minister might inform the committee how that works in practice and what guidelines he has in mind. Will he explain to the committee how a situation might arise whereby a principal, with the consent of the special needs organiser, which is a little stronger this time, may set aside these guidelines?
Amendment No. 64 was suggested by the INTO and is similar to Deputy Crowe's amendment which has already been discussed. The INTO suggested that the principal should have that extra support that has been discussed already. I accept the Minister's amendment No. 340 addresses that issue to some extent.
Amendment No. 66 is similar to Deputy Stanton's concerning parents and partnership. Partnership is a stronger involvement than consultation. The spirit of partnership is an equality issue. Parents are equal partners with a school in deciding what a child needs. We are of the strong opinion that the word "partnership" should be used in the section rather than the word "consultation". All of us will be aware from our experience in a wide variety of areas that consultation does not necessarily mean that one's views have been taken on board. I have in mind the National Roads Authority, for instance. Partnership is a more appropriate word for the role of parents in this process.
On a point of clarification, Chairman, I returned when amendment No. 57 was being discussed. The monitor information stated that the group including amendments Nos. 60 to 68, inclusive, was being discussed, which is why I thought I was speaking to amendment No. 68. As I have already spoken about it, I will not press the amendment and will withdraw it.
Does any other member wish to speak on this group of amendments?
Is the committee dealing with amendment No. 63?
That amendment is included in the group.
I support Deputy Stanton's amendment No. 63 because, in my opinion, it adds some teeth and weight to the Bill and, above all, gives the parents more clout. It is crucial that the voice of the parents of a child with a disability is heard. The key words in this amendment are "partnership", "consultation" and "the parents of the child". As Deputy O'Sullivan stated, partnership is a stronger word than consultation.
In my experience, where schools prepare special educational plans for children in mainstream education, these plans are prepared in partnership with parents. Deputy O'Sullivan is correct that these are prepared in partnership with parents and that is crucially important for the future. Education for these children does not stop when the school closes in the evening. The parents are crucially involved in after-school education in a wide range of areas. It would be appropriate if the word "partnership" could be included.
I agree with my colleague. As Deputy Curran stated yesterday, we can all draw on some personal experience. I have seen in our case that people always suggest that the parents, the teacher or the psychologist know best. In our case we found that the psychologist's report amazed the teachers. They did not realise there was a weakness. Everyone was involved.
As Deputy Curran stated, I am not sure if the wording is suitable but I agree with Deputy Finian McGrath that the concept of partnership, however it is factored in or worded, must be expressed. It could be presumed that it is present throughout the Bill, but it is no harm to have it written in at some point in a definite and specific manner to show that there is a working relationship all along the way.
The discussion of the Bill has emphasised that it should be child-centred. There is also the theme running through the debate that the parents should be involved. The Minister stated that they should be involved, but perhaps it is a duplication to insert the concept of the role of the parents. Anyone reading this proposed legislation would be concerned that, to some extent, the role of the parent was being subsumed or taken over by so-called experts. There is a common theme throughout our amendments that the parents should be included and the Minister has agreed to that. I believe this is appropriate in this section. We should insert this wording stating that the parent must be centrally involved in all such decision-making. Just as the Bill is centred on the child or individual, it also must revolve around the parent.
We could probably spend all day discussing the insertion of phrases about parents in every section of the Bill. It is a case of paying one's money and taking one's chances on many of these. I do not believe amendment No. 63 adds anything. While the wording "in consultation with the parent" is already contained, using a phrase such as "acting in partnership" will not add much to what we are discussing. I take the point that some Deputies have made that, while there is consultation and participation, there can be a substantial difference. I am not sure that inserting the phrase makes a substantial legal difference. I will consider this for Report Stage. Consultation with the parents is provided for in section 3(5)(a).
The other side of this argument is that the principal and teachers in a school jealously guard their roles in the education of children. They would be very quick to tell us that they are the professionals and know what is best for the child. This applies not only to a child with a disability but to any child. Why should parents or anyone else outside the school tell the principal and teachers how to educate children?
We know the parents to which the Minister refers and the type of principals who overreact.
A professional call must be made in many cases. I would have to check whether inserting the phrase "acting in partnership" makes a substantial legal difference to the Bill. I will investigate this regarding amendment No. 63.
While I know this is not its intent, my reading of amendment No. 65 is that we would remove the right of the parents.
I said this would be linked with the other amendment. If amendment No. 64 were agreed, amendment No. 65 would not make sense.
The Deputy can take it I will not accept amendment No. 65.
Amendment No. 66 contains the same kind of phrasing. This might be a more appropriate place to refer to partnership, etc. rather than the place envisaged by amendment No 63. I will consider amendments Nos. 63 and 66 together to see which would be more appropriate.
In response to amendments Nos. 64 and 68, we are discussing school-based assessments which are intended to deal with educational disabilities that are considerably less complex. In deference to what the principals and INTO have suggested, if a principal decides the needs are more complex, it would be appropriate for him or her to approach the council and let it take responsibility for assembling the team, etc.
While I know all these amendments were tabled as part of a belt and braces approach, amendments Nos. 64 and 68 are against the spirit of what we have been discussing about principals. If it is more complex and requires more than outlined here, the principal should consult with the SENO and go to the council. I will not accept these amendments because to do so would be contrary to everything that has been said in the debate.
Amendment No. 69 relates to the guidelines covering this section. Of their nature, the guidelines will be very technical and it would not be appropriate for parents to draft them. As stated by Deputy O'Sullivan and others, it is important to involve parents in the education plan affecting an individual child. I will not accept amendment No. 69 because it is not appropriate.
I will reconsider amendments Nos. 63 and 65 together on the basis perhaps of referring to partnership somewhere in the Bill.
Amendment No. 69 stands on its own and is different from the other amendments, which are linked. The guidelines referred to are contained in section 8(3). They are further defined in section 8(2) under paragraphs (e), (f) and (g). They refer to the special educational support services to be provided to a child to benefit from education and participate in the life of a school. These are the guidelines to which the Minister refers. These are not technical and go to the core of the matter.
Section 8(2)(f) states: “Where appropriate, the special education and related support services to be provided to the child to enable the child to effectively make the transition from primary school education to post-primary school education”. The guidelines relate to special education and related support services. Section 8(2)(g) states: “The goals which the child is to achieve over a period not exceeding 12 months”. While there are other issues regarding this, certain targets need to be set for the child according to this. If I am reading this correctly, these will also be laid down in the guidelines.
If these guidelines are to be set aside by the principal with the permission of the special educational needs organiser, the parents should also be involved in some way because their participation is fundamental. Section 3(5) makes no provision for this and makes no obligations on the principal. The Minister should consider whether the parents should be involved at this stage if only in consultation. My reading is that this is not contained in this section. Perhaps the Minister could inform me where it is covered.
While it might be implicit, section 3(5) states:
In relation to the preparation of an education plan under subsection (4), the principal shall ensure that guidelines for the time being in force under section 8(3) are complied with unless he or she decides, with the consent of that special educational needs organiser, that there are good and substantial reasons for their not being complied with. Parents are not mentioned in the section, even though major changes may be made if the guidelines are set aside. They should be involved in the process in some way.
What the Deputy says is true only if one ignores section 3(5)(a), which I hope the principals will not do. I imagine that if a principal decides to set aside the guidelines, he will mention it to the parents during the consultation he or she must have with them under section 3(5)(a). Perhaps that is not clear or explicit, but I will have a look at it.
I thank the Minister for that.
It is intended that parents will be consulted in that regard.
I will withdraw my amendment, based on the Minister's promise to examine the matter before Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 64 and 65 not moved.
I move amendment No. 66:
In page 7, subsection (5)(a), line 47, to delete “child,” and substitute “child are involved in the preparation of the plan in a spirit of partnership and”.
In view of what the Minister has said I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 67 and 68 not moved.
I move amendment No. 69:
In page 8, subsection (5)(b), line 5, after “organiser” to insert “and the parents of the child”.
The Minister has said that he will reconsider this matter before Report Stage.
Amendment, by leave, withdrawn.
As amendments Nos. 71, 72 and 75 are alternatives to amendment No. 70, amendments Nos. 70 to 72, inclusive, and amendment No. 75 may be discussed together by agreement. I note that amendment No. 71 is in the name of the Minister.
I move amendment No. 70:
In page 8, subsection (6), line 8, to delete "As soon as practicable after" and substitute "When".
The Minister agrees with us, so we do not need to waste time.
Amendment, by leave, withdrawn.
I move amendment No. 71:
In page 8, subsection (6), line 8, to delete "As soon as practicable" and substitute "Immediately".
Amendment agreed to.
Amendments Nos. 72 to 75, inclusive, not moved.
I move amendment No. 76:
In page 8, subsection (6), line 9, after "furnish" to insert ", within 10 days,".
This is a similar amendment.
It is surprising that it was not on the list.
It is surprising that it was not grouped. I will withdraw it on the basis that "immediately" has been included in this section of the Bill.
Amendment, by leave, withdrawn.
Amendment No. 77 is out of order.
Amendment No. 77 not moved.
Amendments Nos. 78 and 87, in the name of the Minister, are related and may be discussed together by agreement.
I move amendment No. 78:
In page 8, lines 13 to 20, to delete subsection (7) and substitute the following:
"(7) Where the principal of a school is of the opinion that—
(a) having regard to the nature and extent of a child’s educational disability as established by an assessment under this section, the preparation of an education plan under subsection (4) in accordance with the guidelines for the time being in force under section 8(3) will not meet the child’s special educational needs, or
(b) whether the opinion is formed in consequence of a review under section 10 or otherwise, an education plan prepared under subsection (4) in respect of a child is not meeting those needs of the child and the taking of any steps by a special educational needs organiser under section 10 on foot of any report by the principal under subsection (2) of that section is unlikely to result in those needs being met,
the principal shall request the Council to prepare an education plan under section 7 in respect of the child.”.
The purpose of this amendment is to provide that a school principal can call the council for help if he or she considers that an education plan prepared by the school is not working out. This may be the case if the needs of a child prove more complex than was initially considered. It makes sense in such circumstances to prepare a more formal assessment that can address fully the child's requirements. I think this provision is in line with what members of the committee have said. It has been argued that principals should be allowed to call in a wider team to provide outside help if the school-based assessment and plan are not working.
I have spoken about the phrasing of the Government amendments throughout this debate. This amendment includes the phrase "having regard to the nature and extent of a child's educational disability", but will the Minister consider replacing that with "having regard to the nature and extent of a child's educational need"? The amendment should focus on the child's need rather than his or her disability. I know that "the child's special educational needs" are mentioned elsewhere in the amendment, but surely we need to focus more on need rather than disability.
The Minister spoke of the need to take action if the plan is not working, but there are issues in terms of setting targets and children meeting targets. I have tried to say at all times that it is not the fault of the child if the plan for him or her does not work. I would like to clarify this subtle distinction. It may be the case that there has been a paradigm shift in the thinking in this regard. It is not the fault of the child if the plan is not working. I would like the Minister to inculcate such thinking throughout the Bill.
I hope that such thinking is present throughout the Bill. We are trying to assess the needs of children and to put plans in place to try to help them to reach their full potential. If we do not have in place a system of measurement and review as part of the process, we will not know whether an individual child is reaching his or her potential, whatever it might be. I take the Deputy's point, but it is difficult to provide for it in law. We are trying to ensure that what happened for a long time, when children were placed in certain schools or left at home and forgotten about, is not allowed to continue. We are not putting in place references to measurement and reaching particular targets in order to blame the child, but to say that the education plan for the child is wrong. If it has been professionally assessed that a child could reach a certain level of literacy, numeracy or motor skills, but he or she has not done so, the plan must be wrong. We are trying to transmit the message that the child is not at fault in such circumstances. I will examine the possibility of including in the Bill a disclaimer which ensures that the focus is not on the perceived failure of the child, but on the failure of the system or the plan. I will try to see if there is some way of doing that. The present wording of the Bill is the best that has been arrived at so far.
Can I take the unusual step of complimenting and praising the Minister? The new section 3(7)(b) refers to the forming of an opinion that “in consequence of a review under section 10 or otherwise, an education plan prepared under subsection (4) in respect of a child is not meeting those needs of the child”. That is what I have been getting at. It is excellent that a reference to a plan not meeting the needs of the child will now be included in the Bill. It means that we are not setting a bar that we expect the child to reach, or a goal that we will make the child achieve. It is better for us to examine the needs of children and to decide on the supports that can be put in place to help them to meet their potential. We should not set some arbitrary benchmark that the child has to get to. That is the difference. A massive difference will be made to the Bill, where everyone is concerned, if we can inculcate throughout it an approach which focuses on the child and not on the plan or an arbitrary goal that has been set by someone. That is what I am getting at. I compliment the Minister’s excellent decision to make this addition. If such changes can be made in other areas of the Bill, the legislation will move from being failure-based, as I said earlier, to focusing on need. Such a change would be a huge improvement.
I would like to ask a hypothetical question. The special educational needs organiser, who draws up the report which follows the review, can decide whether to convene a group of persons to assess the matter. Who has the final responsibility when the organiser believes that he or she can address a problem, but the principal disagrees? Is the matter referred to the council in such circumstances? Who has the power to overrule — the special educational needs organiser or the principal?
The special educational needs organiser will make a recommendation to the council in such circumstances. If other parties are dissatisfied with the recommendation, any of them can refer it to the appeals board. The fact that a parent, a principal or a special educational needs organiser can have recourse to an independent appeals process is one of the big improvements in this Bill, compared to the original Bill which was published. The process is no longer arbitrary in any way. People have the right of appeal if a decision is made in this type of case.
Can the council refuse to prepare an education plan?
If the council felt a principal was simply shunting every case over to it and that a case was not as complex as the principal claimed, it could, in theory, make a decision along those lines. However, the decision would also be subject to appeal.
Amendment agreed to.
Amendments Nos. 79 to 86, inclusive, not moved.
I move amendment No. 87:
In page 8, subsection (8), line 22, after"apply" to insert "and, in the case of paragraph (b) of subsection (7), the education plan prepared by the Council under section 7 shall supersede the education plan referred to in that paragraph”.
Amendment agreed to.
I move amendment No. 88:
In page 8, subsection (9), line 24, before "(7)” to insert “(5) or”.
Amendment agreed to.
Amendment Nos. 89 and 90 not moved.
Amendment No. 91 is a substitute for amendment No. 91 on the principal list of amendments which was originally circulated on 5 January.
I move amendment No. 91:
In page 8, lines 26 to 31, to delete subsection (10) and substitute the following:
"(10) On the hearing of an appeal under subsection (9), the Appeals Board may—
(a) allow the appeal and give a direction to the Council requiring it, as appropriate, to—
(i) arrange for an assessment of the child concerned to be carried out under section 5, or
(ii) cause to be prepared an education plan in respect of the child concerned under section 7,
or
(b) dismiss the appeal.”.
We have already discussed amendments Nos. 47, 59 and 88, the aim of which is to make a clearer distinction between the schools-based assessment and assessments undertaken by the council or a health board. This amendment provides for a right of appeal for the parents or a school against a refusal by the council to arrange for an assessment to be carried out. The substitute amendment to amendment No. 91 corrects an incorrect cross reference which was made. The reference to section 5 should, in fact, be a reference to section 4. The amendment is to be made to consolidate the right of appeal of the parent or a school against the council, which is in keeping with Deputy Crowe's point.
Yesterday, I raised the issue of a statutory right to an assessment. We know that parents can seek an assessment from the council or a health board. If they are refused, they can take their case to the appeals board which can allow or dismiss it. If the appeal is dismissed at that stage, is that the end of it or will the parents have a right to go forward? Would they have the right to go to court to seek a judicial review of the decision? I think they would. Under the Bill, parents do not have a clear and unconditional statutory right to an assessment for their child.
When discussing rights-based legislation, one of the things people talk about is the right to an assessment. After that comes the right to the preparation of a statement of need and then the right to services based on needs. Those are the three pillars of rights-based legislation. If one includes provisions to dismiss assessment requests and appeals, then one fails to provide for a clear statutory right to an assessment. From that point of view, it would be wrong to state that this legislation is rights based.
The point can be made that frivolous and vexatious requests to carry out assessments might be made in respect of the same child every week. Obviously, there are ways for dealing with such instances. Where a parent feels their child is in need of assessment, there could be a difficulty. My guess is that in the vast majority of cases an assessment would take place. However, there may be one case in a hundred which could go through the whole process before being dismissed. Parents would then be forced to go to court. Depending on guidelines, would it not be easier to permit the assessments to occur from the start, given that the vast majority of parents would not wish to put their child through an assessment procedure unless there was a need to do so?
I was going to make my point on the next section but my amendment, which provided that a parent should be able to require rather than simply request an assessment, was ruled out of order. This is an important point. The rights in the legislation are qualified. There is not an automatic right to an assessment if a parent believes a child has a disability. The right is circumscribed. I accept the need for a certain degree of circumscription. If an assessment is requested two months after one has been carried out, it is fair to include a provision in the Bill to deny a further assessment. Such a provision has been made in section 4. I agree with Deputy Stanton that there should be a right to an initial assessment where a parent feels a child has a problem under section 4 or previous sections, or before or after the child goes to school. If we are to have what is generally considered to be rights-based legislation, we must make such provisions. The right is circumscribed and Deputy Stanton's point is well made. The Minister should be honest about this.
My understanding is that, as the legislation stands, a parent can ask the council to carry out an assessment. Where the council refuses an appeal can be made to an appeals board which can reject it or allow it and force the council to prepare a plan. The amendment would ensure that the appeals board would be provided with a third option whereby it could force the council to carry out an assessment of its own. Since the child would have been assessed originally under section 3, this would constitute another assessment involving the principal, the parents and the various professionals. That highlights the length of time this process could take. If it takes three months to get the first assessment done, the same for the second and a month for the appeal, it is likely that seven months would elapse before the process of putting an education plan together even began. It is an unacceptable delay. While the council, the principal and the appeals board argue about who should do the work, the child will get left behind. That is a major concern. Are there any measures we could introduce to cater for the child's needs while all of this takes place? Early intervention will be impossible. The child will be abandoned while bureaucratic processes are continuing in the background. While I am not arguing against it, the amendment highlights the problem. This is one of the great fears people have.
I take Deputy Crowe up on what he is saying. If it is a school-based assessment, the period will not be three months, it will have to be carried out within a month. The matter may become more complex. We spoke in terms of three months to set up a team. I assure Deputy Crowe that we are trying to respond quickly to the needs of the child. I hope people take the legislation in the spirit it is meant. If an assessment is done and somebody is not satisfied with the result or there is no agreement on how the needs of the child in question should be met, I envisage that the child will attend the school and work according to the plan while the matter is being disputed or appealed. I will ensure this is provided for in the guidelines.
I would not like the scenario the Deputy describes to arise and we will try to ensure it does not. In some cases, however, parents adopt an all or nothing approach and refuse to allow their child to attend a school because they are not satisfied with what is being provided in it. Children should be looked after immediately in accordance with the plan that is drawn up, including when a dispute about the plan is proceeding through the appeals process.
This is rights based legislation. Parents and children have the right to all of these measures and there are constitutional rights involved. I am not aware of any totally unfettered right but perhaps somebody can educate me on the matter. One cannot give people a right to seek a review every day of the week, although I am not saying they would choose to do so.
The Minister is saying that.
The Deputy is seeking purity. Every right has to be balanced with other people's rights. Parents have the right to seek an assessment and a right of appeal. If their appeal is refused, they still have the right to a judicial review of the decision. I presume they also have the right to take court action afterwards if they wish, although I hope it will never come to that.
What we are trying to do is to give people a right to an assessment and a plan. If these do not go in accordance with their wishes, they will have a right of appeal to an independent body which will make a decision based on objective criteria, independent of the service provider. The major problem people, particularly parents, foresaw in all of this was that the process would not be independent and objective if the provider of the services was to be the person to whom one would appeal. This will not be the case because the appeals board will be independent and free. Parents will have the right to have their appeal assessed in an objective manner and, following this, will have the right to a judicial review.
When we talk about the legislation being rights based, it is worth noting that a child with an educational disability will have the right to an assessment, an education plan and educational support services. The Bill establishes a process, including a process of appeal, which means it is rights based legislation regardless of how one looks at it.
On the issue of parents and rights based legislation, I do not see how parents of children with disabilities who are seeking rights to services for their children encroach on other people's rights.
The Minister stated parents could take a case to the courts. The vast majority of parents and the various disability groups are sick and tired of going to the courts, as are taxpayers. Many friends of mine have taken cases to obtain services. It is time consuming, draining and stressful for the family, which must also consider costs. We have to move away from this approach once and for all. Even from a financial point of view, it would save us considerable money in the long term.
The point the Minister was making was that the right to take a case to court is not removed by the Bill. He also indicated he hoped it would not be used. We seem to have consensus that the amendment is an improvement.
Amendment agreed to.
Amendments Nos. 92 and 93 not moved.
Question proposed: "That section 3, as amended, stand part of the Bill."
We have talked at length about the extra workload the preparation of the education plans will create for principals and others. A survey carried out by the charity, AHEAD, in 1998-99 found that there were 8,000 students with disabilities in primary schools and 15,700 students with disabilities in the secondary system. It also noted that only 4% of secondary schools had a school plan. If this is the case, it indicates that a tremendous amount of work will be required in our schools if an individual school plan will be required for each of these children and the involvement of councils and others will be required when children with greater difficulties are concerned.
The section refers more than once to section 8 covering the content of the plan, which we will discuss later. Will these plans, whether the school based plan prepared by the principal or involving the special education needs organiser or the council, be written? Given that each school will probably have a number of students with special needs ranging from mild to severe, principals will have to write up or have written up a plan in respect of each child. According to section 8, the plan will outline the nature and degree of the child's abilities, skills and talents and will have to elaborate on the child's educational disability and how it affects his or her educational progress. It would also have to indicate the present level of educational performance, which indicates that some form of objective assessment would have to be carried out. It would then have to specify the educational needs of the child and set out the special education or related support services to be provided for the child, including those to be provided to enable the child to make the transition from primary to secondary education. Principals will have to write these plans for children in sixth class, including an outline of the goals in respect of each child, to be passed on to the next school.
As someone who has been involved in some of these areas in the past, the amount of work involved is enormous. When one puts something in writing — a plan by definition must be in writing — one must be extra careful because one is writing a document which, as we have stated, can be used later in other kinds of fora. I am not saying this should not happen, as it is right that it should happen, but like many of my colleagues I am concerned about its impact. We all know there is a problem with principals who teach full-time in schools, particularly in our small schools. We cannot, nor do we want to, do anything about this. Is it, however, practically feasible to ask principals to take on all this extra work without giving them the extra support required? This concern is being raised constantly. We all want to do it properly, including the parents. I compliment the Minister on bringing forward the Bill and on the aspirations behind it. However, I am concerned about the workload involved. Will it be physically possible for principals to do what is required of them?
Question put and agreed to.
SECTION 4.
Amendments Nos. 94, 98, 101, 111 and 179 are cognate and may be discussed together by agreement. The content of these amendments was discussed this morning and I believe the Minister made an undertaking to consider the possibility of changing the term "where possible" in the Bill.
I move amendment No. 94.
In page 8, subsection (1), line 35, to delete "an educational disability" and substitute "a special educational need".
It was stated that we should focus on the need of the child rather than the disability of the child. Section 4(1) states: "Where the relevant health board is of the opinion that a child who is not a student has or may have an educational disability it shall cause an assessment under this section of that child to be carried out." Will the Minister tell us how it will form this opinion in the first place and, later, how the council will form its opinion? What are the criteria involved? Would it not be better to change the term "educational disability" to "special educational need", thus moving from the negative to the positive? It would focus on what the child needs and wants rather than on what is wrong with the child. We must be objective, but the Minister agreed that he was open to looking at this particular idea in respect of a previous section. He tabled an amendment, to which we agreed, that encapsulated the spirit of what I am proposing. My amendment is stating the same thing but in a very positive way. Amendment No. 98 also proposes a change from the negative to the positive, as do amendments Nos. 101, 111 and 179.
I understand the point Deputy Stanton is trying to make. However, I feel that using the proposed wording in amendment No. 94 dilutes the meaning of the Bill, which is the Education for Persons with Disabilities Bill. If one made the changes proposed, particularly in amendment No. 94, section 4(1) would read: "Where the relevant health board is of the opinion that a child who is not a student has or may have a special educational need it shall cause an assessment under this section of that child to be carried out." A definition of "special educational need" would be so broad that it would not be in line with what the Bill is trying to achieve. For example, in my local school, we might classify people requiring special educational needs as non-nationals who do not have English. This is considerably different to what is envisaged in this Bill. It is changing the interpretation and would result in such children going for assessment and so forth. I favour the wording as it stands. It has greater clarity and allows us to understand what we are trying to achieve. At the beginning of our consideration of the Bill, we considered what was an educational disability. At least there is some continuity as we proceed.
I support Deputy Stanton's amendment. It would be useful if the Minister examined the use of language in the Bill because there are differences. Consider sections 12 and 17, which deal with the functions of the Minister and the council, respectively. Both use the phrase, "special educational needs". Therefore, the term is used is some parts of the Bill while "disabilities" is used in others. For the sake of consistency, I favour the adoption of the positive terminology where possible. I understand Deputy Curran's point that the definition might be too broad but the Bill should be consistent in terms of the language it uses. I do not know the extent of the difference between the two terms, but we should use "special educational needs" where possible.
The social model of disability, such as that covered by the Bill, regards people as disabled by society rather than as being simply disabled. A person who cannot gain access to a school in a wheelchair because of steps is not disabled; rather, the school is disabled.
The amendment refers to a person's needs not being met. It will not have a major impact on the legislation but it will have an effect on the style and approach to its implementation. Therefore, we should adopt Deputy Stanton's wording, which is much more positive. In the discussion about ability and disability, the awful word "malfunction" was used, and now we use the word "impairment". The phrase "special educational needs" encapsulates what we are trying to say in the Bill. It is the language we should try to use.
I take on board Deputy Curran's concerns that the language of the amendments may be so broad that special educational needs could well include needs of a non-national which are not related to educational disability. However, I doubt that changing the wording to make it more inclusive and positive would leave the State open to a legal challenge from the parents of an immigrant child seeking more resources because he or she cannot speak English. The powers that the Minister insists on leaving with the principal under section 3 would enable a large level of cop-on. We could be very inclusive in our use of language without leaving ourselves open to challenge.
It is important that we use inclusive language and in this regard, the Minister was gracious enough to accept an amendment I tabled on integration and inclusiveness. Accepting this group of amendments, which provide for educational needs rather than educational disability, would be a continuation of this. While it would not make a major change to the Bill, it would send out a positive and inclusive message and show we are focusing on the needs and potential of students rather than on disability.
While I understand the spirit of Deputy Stanton's amendment, the Short Title, the Education for Persons with Disabilities Bill, is specific and we should not lose sight of it. We must recognise the difference between educational disability and special educational needs. I fear that the focus of the Bill may be diluted if we are to proceed as the amendment suggests. Furthermore, the spirit of what Deputy Stanton is trying to achieve may not be realised if we follow the route suggested.
We argued about terminology yesterday. I agree with Deputy Curran's comments on this amendment. Deputy Stanton has been consistent in looking for a positive approach. No one wants to use an emotive term, and the term "disability" has been seen as such. However, it is included in the Title. Special educational needs do not just apply to immigrant children.
If we wanted to, we could quote half a dozen other specific cases whereby there would be special educational needs for children without disability. There is a danger of diluting the focus the Bill. While I accept the point raised by Deputy O'Sullivan that it is used elsewhere, I think it is used in a different context.
Deputy Stanton was worried about a future Minister misinterpreting what we needed. However, people will be able to cite the Act and outline the special educational needs of their child, entirely separate from the position of immigrants. There is a grave danger of diluting the Bill if we accept this amendment.
We must all accept that all children have special educational needs. An exceptionally bright child may not be sufficiently motivated in a class and fall behind his or her classmates. There are different groups within a primary school class that allows the children to move at their pace. I accept the points raised by the Deputies regarding special educational needs and recognise that it is a broad area. I have no problem with the term "disability" and I say this as a parent. The language of educational disability is probably stronger and more effective. When we are discussing this legislation, language is important and we need the strongest and best legal language.
As regards special needs, while I accept that it is a positive term, we must ensure that children with disabilities — major disabilities — get the maximum rights, supports and services. This is the purpose of the Bill.
While debating the Bill it is important that we think of children that are forced to accept services away from their homes. We are not looking after their educational needs. It is unacceptable to have visually impaired students travelling to the North and living away from home from Monday to Friday because we do not have services available for them. In my constituency of Dublin North Central, there are people in their 30s and 40s that have to accept services in Westmeath. I would not accept that for my daughter and I do not believe anybody should accept it. There exists a lack of genuine interest in special educational needs. I hope the Bill focuses on children with special educational needs and that we get it right.
I take the point Members have raised. However, the Education Act defines the term "special educational needs" to mean the educational needs of students. It goes on to include the educational needs of exceptionally able students. Special educational needs can be defined in the interpretation section as meaning the educational needs of students that have a disability. This would change nothing other than the language used. I want people to ask what needs to be put in place to support a child — I do not want people to ask what is wrong with a child. This is what this change would mean. However, I agree that what is meant by it would have to be defined.
I do not have much to add to what Deputies Curran, McGrath and Dennehy have said. We have defined all rights in section 1 and it includes the following: ""child with special educational needs" means a child who has an educational disability...". In this section, I favour the use of the term "educational disability", which was drafted partly with reference to the Education Act, but, more particularly, because it is similar to the definition of disability in the National Disability Authority Act, which focuses more on the effect of the disability rather than on the diagnosis of it.
A number of Deputies have pointed out the danger of using the term "special educational needs" in this section as it could obscure the purpose of the Bill. Deputy McGrath made this point strongly. Most other sections refer to special educational needs. I do not propose to accept the amendment.
Amendment, by leave, withdrawn.
Amendments No. 95 and 103 are cognate and Nos. 100, 104, 105 and 107 are related. These amendments can be taken together by agreement.
I move amendment No. 95:
In page 8, subsection (1), line 36, to delete "under this section".
I do not know whether these amendments can be taken together as they differ from one another. Section 4(1) provides that where the council is of the opinion that a pupil has an educational disability "it shall cause an assessment under this section of that child to be carried out." While I and everyone else knows what this means, it would be better to move the term "under this section" to the end of the sentence so that it would read "cause an assessment of that child to be carried out under this section". This is a technical amendment more than anything else. Amendment No. 100 is not in my name while amendment No. 103 makes the same point.
Amendment No. 104 is different and is concerned with time constraints in terms of the council or health board. I am confused as the provisions regarding the time-scale to be applied to the health board or council when they cause an assessment to be carried out.
The question of time limits was dealt with earlier.
That is why I am confused.
I share the Deputy's confusion.
Section 4(4) provides that the council or health board should respond to a request for an assessment within three months from the receipt of a request.
Amendment No. 105 is also relevant here.
The same applies to the next amendment. Does the Chairman wish to split the amendments or keep them together?
We will group them as we have agreed even though they are different. Amendments Nos. 106 and 107 are also time-related.
That is correct. They are all concerned with time, changing the times or imposing extra time constraints.
Amendment No. 100 is the only one in my name since amendment No. 102 was disallowed. The purpose of the amendment is to tighten the wording. If it is accepted, section 4(3) would read: "Where the parents of the child are of the opinion that the child has or may have an educational disability...". This allows for a greater range of possibilities and would, for example, cover the situation where the parents are pretty certain rather than merely doubtful that the child has an educational disability. I hope the Minister accepts it.
Amendment No. 95 is concerned with the elegance of language rather than anything else and we will have a look at it to see if it makes any difference legally. Amendment No. 103 is similar and we will also reconsider it.
Amendment No. 100 is of a drafting nature and we will examine it. Like many of these things, legally, male also means female and singular also means plural. Therefore, that may be covered in the Bill. I will examine the issue.
With regard to amendments Nos. 104 to 107, inclusive, I have already indicated that when Committee Stage has been completed we will revisit the time frames we propose. I understand amendment No. 106 was discussed with amendment No. 51.
It was not, as such, but it should have been.
It is also concerned with time limits. I have undertaken that we will revisit all the time limits.
Amendment, by leave, withdrawn.
I move amendment No. 96:
In page 8, subsection (1), line 36, after "child" to insert ", with the permission of and in partnership with the parents of the child,".
The Minister has already indicated that this is implied across the board in the Bill. However, this amendment will ensure that is the case.
The other question, which I raised earlier, is how a health board would form an opinion independently of parents. How does the Minister see that occurring? There could be cases where public health nurses and other professionals visit houses and may see a child with a difficulty but it is a tricky situation. Assessments cannot be carried out without the permission of parents and ideally in a partnership with them. In this case, it is not a student but rather a child, that is, a person under 18 years. When we debated this earlier the Minister indicated that the health board would also be responsible for people over 18 years who had educational disabilities and who may not be in schools. He also indicated that the council would be involved in conjunction with the health board, which was useful to learn. It is a simple amendment.
I support the amendment, particularly the reference to "the permission of and in partnership with the parents of the child". That is all very well for stable families, but what happens to children in care or those in dysfunctional families? I have experience in the inner city of Dublin of children in care who also have a disability. In such cases, one liaises with a child care worker or someone from the health board. How do we deal with such a situation since some of the staff with these children were acting as their parents while the crisis existed?
I listened with interest to Deputies Stanton and McGrath in regard to the wider context of the amendment. However, section 5 deals with the points raised by Deputy McGrath and in view of this, I have a concern about accepting the amendment. Section 5, especially subsections (2), (3) and (4), is more thorough and detailed than this amendment and addresses some of the issue to which Deputy referred in regard to situations where parents are not involved. I am not a legal person but the amendment may not add anything and may cause confusion. The whole issue of the involvement of parents is spelt out in this section and it is perhaps more relevant.
This amendment is unnecessary because a reading of the whole section refers to the consent of parents being needed and so on. Deputy McGrath rightly refers to the fact that in stable families it is easy to see how such provisions work and how a person can form the opinion that an assessment needs to be carried out. With regard to unstable family situations or children in care, the word "parent" is defined in the Bill to include any body in loco parentis. Therefore, a child in care or in a foster home is catered for.
With regard to Deputy Stanton's point, I imagine and expect that the child aged between zero and four years outside the school system is the responsibility of health board personnel. It is their responsibility to form an opinion and decide whether an assessment is necessary. The parent can also seek an assessment — that is covered. The amendment is not necessary for this part of the Bill.
Amendment, by leave, withdrawn.
I move amendment No. 97:
In page 8, subsection (2), line 38, to delete "a child who is".
This amendment provides that section 4(2) will read: "Where the Council is of the opinion that a student has or may have an educational disability it shall cause an assessment under this section of that child to be carried out." I am not sure of the purpose of the current wording, "a child who is a student". We are talking about somebody who is already a student in a school.
The current wording differentiates between a child who is a student and one who is not. It also differentiates between children who are under and over four years of age. A child under four years is one who is outside the school system.
A child who is not a student is already covered under section 4(1). Surely we do not need this reference in subsection (2). A student is a student and that is it.
We are talking about two different things. Section 4(1) provides for the relevant health board having an opinion about a child, whereas subsection (2) refers to the council having an opinion. The health board deals with children under four, while the council could be dealing with somebody over four.
The Minister will not accept it anyway.
Amendment, by leave, withdrawn.
Amendments Nos. 98 to 108, inclusive, not moved.
I move amendment No. 109:
In page 9, subsection (5), lines 7 to 9, to delete paragraph (a).
This amendment deals with a point that was made earlier about the rights of parents to an assessment. We had some debate on this already. In deleting paragraph (a), I am seeking to reduce the number of instances in which the council can refuse an assessment. Paragraph (b) will remain, which allows for the council to refuse an assessment if “an assessment under this Act has been carried out in respect of the child in the 12 months prior to the date of the request” because, as we have all agreed, it would not be sensible to allow people to obtain assessments for their children continually. I want to make the right to an assessment as absolute as possible. Deleting paragraph (a) will give parents the right to an initial assessment if they believe their child has a disability. Otherwise the council will be able to refuse the parents’ request if it is of the subjective opinion that there are insufficient grounds to support the requester’s opinion that the child has an educational disability. It is a matter of strengthening the right of parents to have their child assessed if they believe he or she has a disability. It is an important amendment.
This amendment raises an important issue. Section 4(5)(a) provides that a health board or the council may refuse to accede to a request if “it is of the opinion that there are insufficient grounds to support the requesters’ opinion that the child has an educational disability”. How can the health board or council reach this opinion prior to carrying out an assessment in the first place? On what information will they base their opinion? Where will they get the information? This is why I suggested that where a parent wants an assessment carried out it should be done. No parent will put his or her child forward unless he or she feels there is a real need. These are crucial points. This is not covered in the Bill. I do not want to be facetious, but the council and health board cannot look into a crystal ball. Where will they get the information?
I am concerned about the term "insufficient grounds". How are these grounds defined? A Minister who is not as concerned and warm-hearted as the current Minister might in future decide to issue guidelines to make it much harder for parents to obtain assessments. This is an important point on which the Minister might give his views.
The key questions are who judges whether the grounds for the claim are sufficient and how. These matters are relevant to the whole section. The Minister needs to answer these questions. An assessment can still be refused if there are insufficient grounds to support the claim that the child has special needs or if an assessment has been carried out in the previous 12 months.
I understand what Deputy O'Sullivan is trying to do. As the amendment stands it provides that a parent can easily obtain an assessment. If we were to delete that section, however, the Bill would provide that a parent, by virtue of the fact that paragraph (b) is left in place, could obtain an assessment every year. The area would be left wide open with no control and the resources required to run these services could become very large. I take it that is why paragraph (a) is included. I have sympathy with what Deputy O’Sullivan is saying in that she wishes to provide that a child can at least have an initial assessment, but if the paragraph is removed matters are left wide open. Parents could obtain not just an initial assessment but an annual assessment without any controlling criteria, such as the need for supporting evidence. The deletion of paragraph (a) would be a dangerous step.
It is imperative that paragraph (a) be removed, as provided for in the amendment. Everybody, particularly parents, must have confidence in the Bill and if this paragraph is retained their confidence would be undermined. I cannot envisage a parent requesting an assessment without grounds for doing so. We must be reasonable and practical. If the paragraph is retained parents will automatically assume it will be used against them. We must eliminate any such suspicions.
I assume that the parents have the right to go to the appeals board and the Minister is concluding on that basis that the health board will come up with good reasons because it knows that it will go to appeal. Is that the rationale?
That is the rationale. Nobody is going to look for an assessment unless there is some reason for doing so. If there is a reason the information will be available to the health board through public health nurses and if the child has disabilities that will be documented from an early stage. The council will not be able to make that assessment for the parents. It will consult with the special education needs organiser and the school, and probably with the parents as well, or the parents will consult it. This will not come out of the blue; there will be background on any child seeking assessment. We must allow discretion for a health board or the council to make the judgment on the basis of information they have that it is not necessary. People have said that parents will be reasonable in this but bodies such as the health boards and the council must be reasonable too, as the Chairman said. The grounds for refusal of an assessment will have to be legitimate. If there is a refusal it can be appealed to an independent appeals board whose decision will be binding on the health board or the council. This is the safeguard I have mentioned before.
The 12 months is not absolutely binding. A review can take place within the 12-month period and can be carried out on the basis of an assessment but we do not want to put the council or the health boards in a position such that they must carry out assessments almost at the drop of a hat. That will cause problems for the health boards, the council and, in particular, for people who genuinely seek assessments if the system is clogged up. There has to be some exercise of judgment on this and I am not inclined to accept this amendment because it would cause serious difficulties.
I see problems here. What of a situation in which a parent who is with a three year old child all day and night believes the child has a problem which may be on the mild end of the autistic spectrum? The parent may think the health professionals have not picked up anything in particular because it is not as obvious to someone who perhaps sees the child only for a ten minute check every three months, or however the health system deals with such a child. One meets parents regularly who feel this way about their children and in those situations they must be able to get an assessment. I accept the Minister's point that they can appeal to the council but they should have the right to the initial assessment. Paragraph 5(a) which refers to the council being of “the opinion that there are insufficient grounds to support the requesters’ opinion”, in effect suggests that one must supply evidence. However, in many of these cases there is no evidence beyond the parents’ feeling that the child is not developing in the way that they would expect. We should err on the side of parents in this situation.
Amendment put.
The Committee divided: Tá, 4; Níl, 7.
Tá
- Crowe, Seán.
- Kehoe, Paul.
- O’Sullivan, Jan.
- Stanton, David.
Níl
- Dempsey, Noel.
- Ellis, John.
- Hoctor, Máire.
- Kelleher, Billy.
- Killeen, Tony.
- McEllistrim, Thomas.
- O’Keeffe, Batt.
Amendment declared lost.
I move amendment No. 110:
In page 9, subsection (6), line 13, to delete "section" and substitute "Act".
Section 4(6) states, "for the purposes of this section shall include an evaluation and statement". This amendment seeks to change this to, "for the purposes of this Act". In other words, assessments under section 3 would also require the evaluation and statement of the nature of a child's disability, etc. This means it would not only be the assessments done by the health boards and the council, but also those done by the principal.
The reason for the phrase in this section is that a distinction is being made between this assessment and a school-based one. I outlined earlier that the council's or the health boards' assessments are likely to be dealing with more complex needs. The inclusion of this provision is more appropriate here than for any school-based assessments. Obviously, when a principal draws up an assessment, the education plan would be making these evaluations and statements for the school-based one. A distinction has to be made here and, accordingly, I will not accept this amendment.
I take the point that this is a more complex situation than it should be, particularly in light of discussions so far. However, the Minister has not said much on what kind this school-based assessment should be. There is nothing specific in the Bill that outlines the scope of the assessment. This is an important issue that the Minister should re-examine. I accept that it should not have the same wording as the council-based assessments, but there should be some outline in the Bill of what the assessment entails. I hope the Minister will have a look at this before Report Stage.
I will look at that on Report Stage in the context of section 3. I take the Deputy's point.
Amendment, by leave, withdrawn.
Amendment No. 111 not moved.
I move amendment No. 112:
In page 9, subsection (6), line 18, after "potential" to insert "and a statement of the necessary resources required to provide those services".
I am surprised this amendment has not been disallowed as it will involve a cost on the Exchequer. The intention of this amendment is to strengthen this section so the necessary resources are more likely to be provided. In section 12 there are all sorts of conditions under which the resources will be given, such as the consent of the Minister for Finance and the opinion of the Minister for Education and Science. This amendment seeks to add, "and a statement of the necessary resources required to provide those services", because if there is a statement delineated clearly for each student, then those resources are more likely to be provided. I hope the Minister will accept this amendment as it has been allowed on this Stage.
I was surprised too that it was allowed.
I also have a good draftsman.
The word "services" rather than "resources" is more appropriate. I know what Deputy O'Sullivan is attempting to do, but this is about the provision of services which automatically requires and implies the provision of resources. The person that is qualified to carry out the assessment might not necessarily be a person that is qualified to quantify the actual amount of financial resources required in a particular area. For example, a psychologist that decides that particular resources or services are needed for a child, may not be able to quantify what that means from the financial resource point of view. It is important that there is an obligation to provide the services. The resources are provided for in another section of the Bill.
Amendment put and declared lost.
I move amendment No. 113:
In page 9, between lines 18 and 19, to insert the following subsection:
"(7) Where an assessment carried out in accordance with this section establishes that the child concerned has an educational disability, the Health Board or Council as the case may be shall, within one month from the preparation of the assessment, cause a plan to be prepared for the appropriate education of the child (in this Act referred to as an ‘education plan')."
The intention of this amendment is to insert the timeframe of one month. It is important that that should be clarified.
I have indicated that we will look at the question of time limits in all the sections. I do not know why this amendment was not included with the other related amendments. Deputies tabling any further amendments relating to time limits may be assured that we will look at them before Report Stage.
There is another issue involved, other than the time limit. Under this section, as I read it, the preparation of an assessment does not necessarily lead to a plan. Section 7 indicates a plan, so that perhaps takes care of the point at the beginning of section 7, indicating that a plan must be prepared, though there is no time limit indicated. I will not press the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 114 and 116 are cognate and may be taken together. Is that agreed? Agreed.
I move amendment No. 114:
In page 9, subsection (7), line 20, after "child" to insert "or the student".
This amendment may be similar to some of those tabled earlier. It proposes that after "child" to insert "or the student" in each case.
In this case it must be that the distinction between "child" and "student" is between those under four and over 18, which would not cause a conflict.
Amendment, by leave, withdrawn.
I move amendment No. 115:
In page 9, subsection (7), line 21, after "Board" to insert "which shall determine the appeal within 6 weeks of the appeal being received".
It is amazing that this amendment was not grouped.
This amendment also relates to the time limit.
I am concerned that the time limit involved is quite short but as I indicated, I will have a look at it.
Amendment, by leave, withdrawn.
Amendment No. 116 was discussed with amendment No. 114.
Amendment No. 116 not moved.
Question proposed: "That section 4 stand part of the Bill."
This section has to do with assessment of the child by, or on behalf of, the health board or council. We have all had much correspondence from schools and principals on the workload. If principals are very concerned about the workload, and they will be, they could simply say, in all cases that come before them, that they will get the National Council for Special Education to look after them. They might just pass on the issue to the council. This is something I can see happening if principals are to be over-loaded, if the Minister does not look at their workload and if he thinks they need no extra help, despite the extra work and responsibility. There is a danger that the National Council for Special Education could end up having to deal with nearly all of the cases, and that under the Bill the principals could legitimately pass on these cases to the council as being its business. This would be a pity because a lot of work could be done in the schools if principals were given a little extra support, and the role of the special needs organisers was expanded to give that support. The Minister might also take into account that there are many children with disabilities who will need help, and that principals will need help in giving the necessary support. The Minister might comment on the section generally.
We should not lose sight of the fact that the section relates to the assessment of children, that it is a key initial step in ensuring that a child's needs are identified and that it also outlines the services that he or she needs to benefit from education. I have considerably changed the section regarding the workload of principals and I have indicated how I have changed that. I reiterate the point I made regarding section 3, that principals can delegate responsibility. We have changed the Bill to allow them to consult or to ensure there is consultation with the special education needs organisers. There will certainly be some extra work involved, but it will not be as much as has been suggested. It is certainly not as great now as it would have been if we had not put forward our own amendments, which I mentioned yesterday during the course of the debate.
It remains extremely important that the school remain the first place of assessment and that it has the power to make the initial assessments of children in cases where the needs are not complex. After that they will be dealt with by the health board or the National Council for Special Education.
Question put and agreed to.
SECTION 5.
Amendment No. 117 not moved.
Amendments Nos. 118, 120 to 124, inclusive, 126, 128 to 130, inclusive, are alternatives and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 118:
In page 9, to delete lines 28 to 36 and substitute the following:
"(1) An assessment under section 4 shall be carried out with the assistance of persons possessing such expertise as the health board or the Council considers appropriate; those persons may, in the discretion of the board or the Council, include one or more of the following:
(a) a psychologist;”.
This is a further extension of previous amendments I tabled to provide a clearer distinction between the school-based assessments under section 3, and assessments undertaken by the council or a health board under section 4. It removes the section 3 assessments from this particular section which relates to the method of assessment. In respect of section 3, or school-based assessments, that section already provides that they will be subject to council guidelines.
We will later consider amendment No. 131. It specifically requires a health board, council or school to facilitate the participation by parents in any form of assessment. That meets the issues raised by the Deputies in amendments Nos. 120, 121 and 126.
Regarding amendment No. 122, it is right that discretion should be left to the council or the health board. Otherwise a large team of professionals may be convened, many of whom would not be required to carry out a particular assessment of needs. The current wording allows for such discretion. There is no point in getting a psychologist, a psychiatrist, a medical practitioner and God knows who else together if only a medical practitioner is needed in the case of, for example, a physical disability.
Regarding amendments Nos. 128 and 129, my understanding is that the Interpretation Acts provide that in Acts of the Houses of the Oireachtas, words in the singular include the plural and vice versa. Deputies O’Sullivan and Stanton have indicated that this is so. I will check and make sure.
Amendment No. 130 appears to improve the reading of the relevant paragraph and I will accept it.
What the Minister has said clarifies matters considerably. Putting it all together as a package in the way the Minister has done improves the situation quite a lot and goes a fair way towards providing what we have sought all along. I note the proposed substitution of the lines referred to by the Minister, to include the wording "an assessment under section 4 shall be carried out with the assistance of persons possessing such expertise as the health board or the Council considers appropriate; those persons may, in the discretion of the board or the Council, include one or more of the following: (a) a psychologist;”. It goes on, I assume, to include the rest. We have not defined what a psychologist is. I think the Minister said he would revisit that and perhaps examine it at some stage. He may correct me if I am wrong. There are many different types of psychologists with different levels and areas of expertise.
I said we would examine the possibility of lists, so the councils would have an approved list.
Something like that might be the way to go. I agree with the Minister that it does not make a significant difference whether the persons "may" or "shall" be included on one or more lists. However, the way the Minister has it, none of them might be included. In this way, one of them would have to be. I disagree with the Minister when he says that inserting the word "shall" instead of "may" would mean they would all have to be included. That is not the case, since it would go on to say "one or more of the following". That qualifies the "shall". I am pleased the Minister is accepting amendment No. 130. That improves the Bill. Those are the amendments I tabled.
In amendment No. 131, the Minister has addressed the issue I raised in amendment No. 121. I do not know why Deputy Crowe's amendment No. 127 is not included, since it seems exactly the same as my amendment No. 128.
It is not on the list, but it might have been with amendment No. 56.
Perhaps I might comment on the Minister's own amendment No. 118. I am concerned about it, since in effect it removes mention of section 3. The original wording stated that an assessment should be carried out under sections 3 or 4. In other words, there is no delineation of what sort of expertise should be involved in carrying out an assessment under section 3. I suspect once again that the root is the Minister wishing to give the principals as much discretion as possible, thus reducing their workload and so on. However, I am concerned about that. It goes back to a point I made earlier about there seeming to be very little precision about what exactly happens when there is a school-based assessment, how it is carried out, what it consists of, and what is written down about how the child's education should be addressed. I am concerned about why the Minister has removed the reference to section 3 in his amendment. Apart from that, I have no problem with how he has reworded the section. However, he must go back and consider precisely what he wants to be done under section 3. I do not wish to reopen the debate about whether one should go straight on to assessment by councils, but it is part of the same issue. There is far too much woolliness in the Bill about what exactly happens when an assessment is carried out in the school rather than by the council.
We have run a little over time. Is it agreed that we will complete the discussion of these amendments at 1.30 p.m.? Agreed.
Sitting suspended at 12.34 p.m. and resumed at 1.30 p.m.
We are discussing amendments Nos. 118, 120 to 124, inclusive, 126 and 128 to 130, inclusive, together.
Amendment No. 123 is a technical amendment. Section 5 refers to "in the discretion of the health board", but it would be more correct if it read "at the discretion of the health board". It is a minor point but perhaps the Minister could re-examine the matter. It is linguistically more correct to refer to "at" than "in". It is a minor point on which the Minister might want to obtain advice and come back to me or perhaps he will accept the amendment.
I understand "board" means health board but I suggest it might be useful to insert "health" before "board" to give it its full title. Perhaps this could be done throughout the Bill because there are references to the board of management of a school and so on. This is a minor point but it would not make any difference to the Bill to insert "health board" because there are references to an appeals board, board of management and so on. Where "board" refers to a health board, it should state that. This is one of the sections where it appears. There may be others and perhaps the Minister might consider making the change throughout the Bill before Report Stage. We are aware also that the title of health boards will change shortly. That is the purpose of these amendments.
I indicated in my earlier general remarks that we would examine amendments Nos. 123 and 124, which are drafting amendments. The only reason the word "health" is not put before "board" is because the meaning is clear. The section states: "An assessment under section 3 or 4 shall be carried out with the assistance of persons possessing such expertise as ... the health board or the council ... considers appropriate”. It then refers to “board”, but I have indicated that we will examine these amendments before Report Stage.
Is amendment No. 118 agreed?
No. I am concerned about section 3 being removed from it. Does the Minister have anything to say about that?
I have nothing other than to repeat what I said earlier. We discussed this matter in great detail. Either we have school-based assessments or, where the school cannot do that, we opt for external assessment. That is the model we have decided on and this amendment is in keeping with that. It is to make clear that we are doing that. I outlined the reasons for that, some of which adverted to the workload that had fallen on principals, but it is also because it is more effective to make a clear distinction between relatively straightforward disabilities or impairments a child might have which can be dealt with in the school and the more complex ones that will require a more complex assessment.
Amendment put and declared carried.
Amendment No. 119 cannot be moved because amendment No. 118 has been accepted.
Why can amendment No. 119 not be moved?
Apparently it is covered by amendment No. 118.
It was discussed in conjunction with other amendments.
It was discussed with amendmentNo. 56. Does amendment No. 59 cover it? That might be the case.
Does it not stand alone in its own right?
Normally that would be the case. My note is to the effect that it cannot be moved and that would only arise where an amendment which superseded it had already been agreed. Do you think that is not the case?
I do not believe it is the case.
You might be right. In any event it has been discussed already with amendmentNo. 56.
On a point of clarification, effectively what has happened is that we have discussed the words "principal" and "special educational needs organiser", but these terms apply to specific sections. We discussed them in broad generality and they will probably arise again.
We did not decide whether we would accept this amendment.
We did not dispose of amendment No. 119.
We discussed it but we have not disposed of it.
That is what I am saying.
Deputy, my note is correct. It cannot be moved because it is an alternative to one of the other amendments in that group which we have already accepted.
I think it might be amendmentNo. 89. My advice is that it is affected by one of the amendments, although I do not know which one.
We agreed the principle but not as it applies section by section. We agreed under a previous section that we would use the word "principal" rather than the alternative, and we voted on it, but it will probably arise again because it is inserted in other sections.
The Minister's amendmentNo. 118 deletes that part of the Bill, does it not?
It deletes several parts of the subsection but does not appear to delete the part to which amendment No. 119 relates.
That line is deleted so the amendment does not apply.
Amendments Nos. 119 to 126, inclusive, not moved.
Amendment No. 127 in the name of Deputy Crowe concerns the use of the plural rather than the singular. I will examine this and others I have indicated before Report Stage.
Amendments Nos. 127 to 129, inclusive, not moved.
I move amendment No. 130:
In page 9, subsection (1)(v), line 42, to delete "a" and substitute "the special educational needs of the".
Amendment agreed to.
Amendment No. 132 is related to amendment No. 131 and they may be discussed together by agreement.
I move amendment No. 131:
In page 9, between lines 42 and 43, to insert the following subsection:
"(2) A health board, the Council or a principal, as appropriate, shall facilitate, in a manner that is consistent with the assessment being carried out effectively, the participation by the parents of the child concerned in the carrying out of an assessment under section 3 or 4.”.
Most of the discussion we have had since we commenced the debate on the Bill has related to trying to strengthen the role of parents in the assessment process. The argument has been advanced, and I believe accepted, that parents know their children best and have a vital contribution to make to an assessment process. None of us would argue too much that the parents know their children best, and that would be accepted, but this amendment is designed to ensure that parents do not become involved to an extent which jeopardises the effectiveness of the process.
It is a matter of trying to maintain a balance. As parents we know that our parental concerns might override our good sense on different occasions, and the amendment makes allowance for that. It meets the concerns expressed in amendment No. 132, which are fully addressed by my amendment.
I am delighted the Minister is doing this. I recall seeing a sign in a school corridor years ago which read: "No parents beyond this point". Thankfully, those signs are long gone and there have been enormous changes since then, but it indicated at the time that parents were not to be seen or heard in schools. They were seen as a nuisance, but that has changed across the board.
The only difference between the Minister's amendment and the one I tabled is that we were anxious that an independent advocate — an issue that arises later in the Bill and which was briefly discussed yesterday — would be available to assist parents in dealing with officialdom. For many, officialdom could, unfortunately, include the principal, teachers and so on.
I am informed that, in other jurisdictions, education departments have established, in conjunction with legislation such as this, or have funded independent advocacy services that parents could access to help them. An advocate could accompany parents because, in some instances, they may find that the language we use or that is used in schools where assessments and so on are concerned is alien to them. Parents might be intimidated by a formal setting, afraid to speak their minds, not know what to say and might miss points. It is important that the Minister consider either the parent or the independent advocate involved with him or her assisting the school, the council, the health board and whoever else is involved to understand what is going on and thereby directly assist the child.
It will be argued that the Minister's amendment could implicitly incorporate that proposal, but it does not state it. The Minister said yesterday that the disability Bill will include provision for an advocacy service, but in this area we are dealing with education for children with special needs and we need an advocacy service or some way to allow existing groups to be recognised as being advocates or who could be assisted by the Department in some way to become advocates.
That is the only difference between the two amendments, although our amendment provides that parents should be involved and informed at all stages of the assessment process. The Minister may say he does not want parents to be included at every stage or there may be a case where parents would be excluded in some way.
I am happy with the Minister's proposal because it is a major step towards where I want to go, but I would be interested to hear his comments on my point about advocacy. If the health board, the council and the principal decide that it is not consistent that the parent be involved or participate, which is the word used in the Bill, I take it the parent can be excluded. I realise that is not the spirit of the Bill but there is that possibility. There is a dangerous trapdoor into which parents could fall, even though the thrust of the proposal is good and welcome.
We have discussed the involvement of parents in previous sections and it is crucial to the operation of the Bill. We discussed it concerning consultation and partnership. I am pleased to see that amendment No. 131 concerns more than consultation and is proactive in encouraging parents' participation. The language of that section is straightforward, clearly defined and understandable. I welcome the fact that it does not concern consultation alone, which has become such a cloudy and ill-defined area. Participation is a much better choice of term and I am especially pleased to see it included.
We have discussed this issue before and I welcome the amendment. It is important to write into the legislation the participative role of parents. I made the point earlier about an advocate and I share Deputy Stanton's concern in this regard, although it will be included in the disabilities Bill. If a parent is absent, unable to act, or not interested in becoming involved, there might be a role for some of the umbrella bodies, such as the Down's syndrome association, to become involved in the process.
I agree with the thrust of what other speakers have said about advocacy. While I welcome the Minister's amendment, it raises questions as to whether parents have a role as of right. Are they present as equal partners in the assessment process? It seems to be suggested that they are present by the grace of the principal or the council, which raises a number of questions. Who makes the decision that facilitating parents may not be in the best interests of the assessment? What happens in a situation where parents are overly critical? Who will make such decisions regarding their role?
We are trying to ensure that parents are involved as of right, not by the agreement of the principal or the council. I welcome the wording of the amendment, which states that "a health board, the Council or a principal, as appropriate, shall facilitate, in a manner that is consistent with the assessment being carried out effectively, the participation by the parents of the child concerned in the carrying out of an assessment ...". However, it also raises a number of questions such as those I have outlined.
I support amendment No. 131, which is a positive and effective measure. It is not often that I support something the Minister has proposed, but that is the reality of the issue as I see it. I also support Deputy O'Sullivan's points concerning the advocacy group. Disability groups operating on the front line, such as Down's Syndrome Ireland, have designated people to deal with these issues. It is important therefore to make available such facilities and procedures that are open to various disability groups and not just health boards, the council or principals. Overall, I welcome the amendment.
I broadly welcome the Minister's amendment. I would like Deputy Stanton to indicate whether or not he will withdraw his amendment or whether he feels it is better worded than the Minister's.
Does Deputy Stanton wish to comment on that?
I would like to hear what the Minister has to say first about the advocacy issue and then we will see.
My amendment No. 131 is not leaving the decision to the whim of a principal, the council or a health board. It states that they "shall facilitate", so there is an obligation on them to facilitate the participation of parents in carrying out an assessment. The amendment is deliberately worded to try to cover what the Deputies have discussed, first, by using the word "shall", so it is not being done at anyone's whim. Second, instead of using the word "consult", as we have elsewhere, we say: "shall facilitate ... the participation by the parents of the child concerned in the carrying out of an assessment ...". There is nothing in the section to prevent a parent from saying that he or she wishes a certain person or group to act on his or her behalf.
The amendment covers the points made earlier, although it does not establish an advocacy service. I referred to that service in the context of the disabilities Bill which will deal with it. It opens the door for full participation by parents. It is not a question of who will decide this, because the amendment states that they shall be facilitated. The amendment is strong and seeks balance, as much as one can, to allow for situations where it might not be consistent with the assessment being carried out effectively. If that rider were not inserted, a dysfunctional parent, for example, could cause all manner of problems. The amendment seeks to cater for that scenario rather than a committed parent who wishes to become involved and wants the best for his or her child. The other side must be catered for also. Perhaps members of the committee would accept this strong amendment.
As I said initially, I welcome the amendment. I accept what the Minister said to the effect that it is positive and goes a long way to meet the concerns we have raised in recent days.
On Report Stage, will the Minister consider adding after the words, "parents of the child", such wording as, "or an independent advocate acting on behalf of the child"? That would incorporate the spirit of both amendments so that there would be no doubt that an independent advocate, acting on behalf of the child, could also be facilitated in a manner consistent with the assessment being carried out effectively.
As the Minister indicated, a parent might be unable or unwilling to be present, for all manner of reasons. Alternatively, the advocate could be present along with the parent to advise, assist and explain to the parent what was going on if, for various reasons, the parent was unable to understand the procedure or felt intimidated by it. In this way, the parent would have a friend for support. It would also help the school and the council in that there would be a go-between whom all sides could trust. I understand the Minister's point that there is nothing to stop that from happening at this stage but, if the additional wording were included, it would demonstrate that the inclusion of an advocate was possible. The Minister might consider that on Report Stage.
Amendment agreed to.
Amendment No. 132 not moved.
I move amendment No. 133:
In page 10, subsection (4), line 16, after "determined" to insert ", after consultation with the Minister,".
This is a technical amendment, which requires the body appointed to set standards to consult the Minister for Education and Science. This is considered necessary because the body, by and large, will be a health one which will set standards that will apply in some cases in an education environment. The amendment seeks to ensure that the Minister for Education and Science will be consulted.
Will the Minister expand on what he means by "health body"? Does he mean health boards, as laid down at present, or does he mean some form of professional organisation? For instance, we mentioned a problem with psychologists earlier. The PSI might be the prescribed organisation but there are many other therapies and therapists involved. Does the Minister intend that a professionally regulating body would be involved? Is that what he means by a health body?
It could be any or all of those. They will be prescribed by the Minister for Health and Children. It could be a health board or NEPS but it could also be anything under the aegis of the Minister for Health and Children. This amendment seeks to ensure that before any such body lays down any guidelines or regulations the Minister for Education and Science is consulted so that we can have some input from an educational point of view into the guidelines.
Amendment put and declared carried.
Amendments Nos. 134 and 135 are related and amendment No. 136 is an alternative to amendment No. 135. Amendments Nos. 134, 135 and 136 are to be taken together by agreement.
Agreed.
I move amendment No. 134:
In page 10, subsection (6), line 24, after "section 4” to insert “and any relevant documents relating to that assessment”.
There is not much disagreement on this. We are all looking to achieve the same thing, which is improving the parents' role in the assessment process. My amendments, amendments Nos. 134 and 135, meet the concerns expressed by Deputies in amendment No. 136.
Amendment agreed to.
I move amendment No. 135:
In page 10, subsection (6), lines 25 and 26, to delete "upon request being made by them therefor" and substitute "after that statement has been prepared".
Amendment agreed to.
Amendment No. 136 not moved.
Amendments Nos. 137 to 139, inclusive, are related and are to be taken together by agreement. Agreed.
I move amendment No. 137:
In page 10, subsection (7), line 27, after "shall" to insert ", with the prior written consent of the parents of the child except where subsection (3) pertains,”.
I wanted to bring the Minister's attention to this because subsection (3) deals with a situation where the parent of a child refuses or fails to give his or her consent within a period that may be specified. In this case one might have an abusive parent, a parent who does not care about a child or a parent who does not accept that the child has a special educational need.
We must be careful about making documents and reports available to parents in circumstances where that might prove detrimental to the child in the long run. It is a tricky situation but there could be a parent who does not like a child or who is aggressive towards the child. A confidential report could be carried out against the parent's wishes on foot of a Circuit Court order but subsection (7) states that in any case, all statements should be made available. I wonder if that is the best thing to do, with the dangers involved here. The Minister should look at this again, if he has not done so already, and get back to us. It is a sensitive and unusual situation.
I accept that it is sensitive and I wonder if amendment No. 137 goes too far. My amendment No. 139 argues that the parents should get a copy of the assessment. As it stands the health board or council carries out an assessment and can give a copy to anyone it feels is appropriate. The amendment states that the body involved is required to inform the parents of the identity of the people involved, which is reasonable enough. If papers are going around regarding the child, the parents at a minimum should have access to who is getting copies of the file. That is putting no huge burden on anyone and it would ensure parents are kept informed of developments. I presume they could get the information under the freedom of information legislation anyway but if there are files on the child going around the parents should know who is getting those files.
I support Deputy Crowe on this because this was to facilitate the co-operation of the parent with those dealing with the education of the child. If the parents know who exactly has these reports then they know who they are to deal with in terms of their child's education. This is practical and would assist everyone concerned.
I support amendment No. 139. There is another side to this issue in that conspiracy theories sometimes abound. It can be difficult for a parent to access information readily through the Freedom of Information Act and they can imagine there is a reason behind that difficulty when there is no reason at all. We all know how the bureaucratic wheels of the State turn and I will give a brief example. It is almost a year since I made a freedom of information request to a health board but I have still not received anything back. I am waiting for the delay to reach a year before I complain, as that would be more poignant.
Deputy Crowe's amendment does not contain any State secrets or put anyone in danger. It lets parents know who is involved in dealing with their children and it would be an open way to push through the rest of the Bill. We are trying to be inclusive and including this amendment would cause no damage to life or limb. Making this less bureaucratic would give parents more confidence in the whole process.
Amendments Nos. 137 and 139 are a little too bureaucratic, though Members have talked of trying to reduce workloads or making sure workloads are kept to a minimum. The less bureaucracy we have the less work people have to do but assessments do not take place in a vacuum. They are done to identify needs and to make provision for those needs. Professionals involved in a child's education, teachers and so on, have to be made aware of the findings of an assessment. How else are they to provide for the child's needs? How can they meet those needs? Accepting amendments Nos. 137 and 139 will increase bureaucracy. Amendment No. 138 is not necessary either as a child's educational needs will encompass any special needs he or she may have. That is already implicit in section 7(2). On amendments Nos. 137 and 139, I do not think it will be any great secret. If the Bill works the way it is meant, parents will know who is working with their children and what is being done. I am anxious to avoid a situation where everything must be put on paper and where parents must be informed formally and so on. I have no desire to prevent parents from knowing. I do not want parents issuing freedom of information requests to get information. I will consider amendment No. 139 in that context. Perhaps we will go the route of "the parents shall have a right to know" rather than "shall inform". I do not think amendments Nos. 137 and 138 are necessary in light of consideration of amendmentNo. 139.
Amendment, by leave, withdrawn.
Amendments Nos. 138 and 139 not moved.
I move amendment No. 140:
In page 10, between line 31 and 32, to insert the following subsection:
"(8) Where the parent of a child is not satisfied with the results of an assessment under section 3 or 4 he or she can appeal the results of the assessment to the Appeals Board which shall hear and determine an appeal under this section within two months of the appeal being lodged and may either—
(a) dismiss the appeal, or
(b) allow the appeal and direct the health board or the Council to cause a further assessment to be carried out and shall give reasons for its decision and shall issue guidelines pertaining to the further assessment.".
If parents are not happy or do not agree with the results of assessments there is nowhere for them to go. My amendment seeks to bring in the appeals board and allow parents to seek an appeal of the assessment itself. The reasoning behind this is that the resources, support services and so on will flow from the assessment. If the assessment is flawed, there is nowhere else for parents to go. The amendment allows for the results of the assessment to be appealed.
It has been brought to my attention since tabling the amendment — the Minister might take this issue on board — that if schools and principals are not happy with the results of an assessment there is no way they can appeal it. I found this out recently. The whole area of assessment is a crucial matter on which everything else depends. If an assessment is refused, one can appeal the matter of getting an assessment, but as far as I know one cannot appeal the results of an assessment to the appeals board. I put it to the Minister that this would be a useful provision, which would possibly allow parents to have that extra flexibility. Perhaps schools or principals could do the same if they were not happy with the results of an assessment.
I do not understand why the amendment is not grouped with my amendment No. 141, which deals with Deputy Stanton's proposal in regard to appeals on assessments. I am inserting a new section 6. The Deputy will be pleased to know there is an appeals system under my amendment No. 141 which will deal with his proposal.
I am pleased about that. Perhaps the Minister will consider the school, principal or professionals in the school being able to appeal an assessment. This issue has been brought to my attention.
They will be involved in the making of the assessments. I do not understand why they would want to appeal against an assessment they will be involved in.
They will be involved in the school based assessment, but if the council is involved——
They will also be involved in the council when they will be consulted and participate in it under the special educational needs organiser. I will consider the issue on Report Stage but I would be surprised if they want to start second guessing themselves.
Amendment, by leave, withdrawn.
Section 5, as amended, agreed to.
NEW SECTION.
I move amendment No. 141:
In page 10, before section 6, to insert the following new section:
"6.—(1) Parents may, in respect of their child, appeal to the Appeals Board against an assessment made under section 3 or 4 in relation to the child on the ground that it was not carried out in a manner which conforms with the standards determined under section 5(4).
(2) The Appeals Board shall hear and determine an appeal under this section within 2 months after the making thereof and such a determination may be one either to—
(a) allow the appeal and give such direction as it considers appropriate to the principal, the health board or the Council, as appropriate, (which may include a direction requiring a fresh assessment under section 3 or 4 to be carried out in relation to the child), or
(b) dismiss the appeal.
(3) A principal of a school, a health board or the Council shall comply with a direction given to him or her or it under subsection (2).”.
An independent assessment process was a key request from groups representing people with disabilities. Under the Bill, we are already setting up standards. Standards must be set by a body which is not involved in the provision of services. This provides that, in the event of a parent being dissatisfied with the assessment on the grounds that it falls short of these standards, he or she may appeal to the appeals board. The fact that the parent can do it will probably mean the principal will advise they should appeal.
I made that point but the principals to whom I spoke said that sometimes this might not be the case. I accept what the Minister has said that in the majority of cases that would be the situation.
Amendment No. 141 strengthens parents' hands. It gives more options to parents of children with disabilities. I welcome the fact that the Minister has taken on board the views of the parents' groups and many of the disabilities groups. Amendment No. 141 was one of the issues they prioritised, for which I thank the Minister.
Amendment agreed to.
SECTION 6.
Amendments Nos. 142, 146, 147, 151, 154, 155, 157 and 165 are cognate. Amendments Nos. 143 to 145, inclusive, and 148 are related. Amendments Nos. 142 to 148, inclusive, and 151, 154, 155, 157 and 165 will be discussed together.
I move amendment No. 142:
In page 10, subsection (1), line 37, before "services" to insert "support".
The amendment proposes to provide for the child such services identified in the assessment. I said on the previous occasion that in the interpretation of a past section we mentioned support services. I thought it would be more consistent to include the word "support" before "services" and to link in with support services defined in the Education Act.
Amendment No. 143 seeks to include the words "necessary to meet his or her special educational needs". This brings me back to the theory of disability. We are talking a positive language of meeting needs. This amendment strengthens further the section when talking about meeting special educational needs as identified.
Amendment No. 144 seeks to include after the word "education" "and the relevant health board will provide these support services as soon as is practicable and without delay". The Minister might want to come back to this amendment in regard to proposals on time amendments.
Amendment No. 146 seeks to insert the word "support" before "services" and amendment No. 147 is the same. Amendment No. 148 refers to the council. It is similar to amendment No. 144. It seeks to include the words "as soon as is practicable and without delay" after the word "concerned". There may be better wording than that but the amendment ensures that there will be an urgency about the matter. No timescale is given in section 6(2).
Amendment No. 151 refers to support services. Amendment No. 153 proposes to include"student" after the word "child". Amendments Nos. 154, 155 and 157 refer to support services. Support services are defined in the Education Act. I do not propose to read them out again. These amendments would make the legislation more understandable. When we talk about services we mean support services.
Amendment No. 145 seeks to put a timeframe on the provision of the services. The section deals with the provision of services, whether by health boards, schools or the council. No timeframe is set. There is an obligation to provide services but the Bill does not say how soon that should be done. I seek to have a time limit of one month included in the Bill.
I understand what Deputy Stanton is saying about services. However, I disagree with the insertion of the word "support". "Support services" is defined, on page six, as having the same meaning as in the 1998 Act. By including the word "support" we may be limiting the type of services that could be offered. The word "services" is a broader term and is not limiting in the same way.
Amendment No. 143 is not necessary, given that section 6(1) already imposes an obligation on the health board to provide whatever services are necessary to enable a child with disabilities to participate and benefit from education. Implicit in that is the notion that his or her special educational needs are being met. With the inclusion of the new section 6(1) I do not consider the amendment necessary.
Amendments Nos. 144, 145 and 148 deal with timeframes. I will consider those amendments in the context of Report Stage. I am not convinced that specifying a time limit is a good idea. It can often act as a form of delay. If we were to set a limit of one month, as is suggested by Deputy O'Sullivan, there is a danger that people might not feel obliged to act for one month. I would prefer to use a wording that would impose a timescale in some better way. I do not want to have people waiting until the last day of the month. I accept the Deputy's point that if there is not a time limit the time taken could be as long as a piece of string. I will give further thought to those amendments between now and Report Stage. They are all time related.
The remaining amendments involve changing "services" to "support services". I will consider those but I am persuaded, and not because of party political partisanship, by the argument made by Deputy Curran that the proposed wording might limit the services provided. I will look at the 1998 Education Act to see if the list is an exhaustive one.
Apart from amendment No. 143 I accept the thrust of these amendments and I will consider them before Report Stage.
Deputy Stanton, is your amendment being pressed?
On foot of the fact that the Minister has said he will look at the list in the Education Act 1998, which is comprehensive, I withdraw the amendment. I take Deputy Curran's point that the change of wording could limit services. Support services are mentioned in the Interpretation section and then the term seems to disappear. It is important to link the two pieces of legislation. However, support services, as defined in the 1998 Act, may be best rendered as "services" in the Bill.
My concern is that when a list is definitive the very service that is not included may be the one that is required.
The list includes assessment, psychological services, guidance, technical aids, provision of Irish sign language, speech therapy, early childhood, teacher welfare, transport and so on. It includes many services which might be excluded under the definition of services but they are clearly included here. Many people are concerned about the provision of transport, for example. School maintenance is also included in the 1998 list. The list could be expanded but everything on it must be retained so that it cannot be argued that transport, for example, has nothing to do with the school.
Amendment, by leave, withdrawn.
I move amendment No. 143:
In page 10, subsection (1), line 38, after"necessary" to insert "to meet his or her special educational needs and".
The Minister says this is implicit in the Bill but I cannot understand his reluctance to make it explicit. I would appreciate him explaining to me how including these words would harm the Bill. I do not see why he refuses so adamantly to change the language of the Bill from the negative to the positive, even in a small way. This change must happen at some stage. The language of disability, nationally and internationally, is moving from negative to positive but the Minister appears to be stuck on the negative and does not want to include the positive. I accept that he has moved some way but he has not gone the whole hog. The inclusion of the words "to meet his or her special educational needs" would go a long way towards doing that.
Perhaps the Minister will consider this amendment before Report Stage in the overall context of the Bill. If he will not accept the amendment I must withdraw it.
Amendment, by leave, withdrawn.
Amendment No. 144 not moved.
I move amendment No. 145:
In page 10, subsection (1), line 39, after"education" to insert "within one month from the assessment".
The section provides for a three month timeframe in the case of a dispute between the health board and the council as to who will deal with an issue. That is appropriate. The Bill deals with health boards as well as with the Department of Education and Science. Delays have been experienced in the provision of services by health boards. Some of these services may be newer to health boards than to the Department where there is a well established system of special needs education. I believe there is a need for a gun to be put to the heads of the health boards to make sure they provide the services within a reasonable timeframe. I hope the Minister will come up with something positive in that regard.
Amendment, by leave, withdrawn.
Amendments Nos. 146 and 147 not moved.
I move amendment No. 148:
In page 10, subsection (2), line 45, after "concerned" to insert "as soon as is practicable and without delay".
The Minister is worried about timescales. This amendment does not specify a timescale but simply asks that services be provided as soon as is practicable and without delay. I will withdraw the amendment on the understanding that the Minister undertakes to look at it.
Amendment, by leave withdrawn.
I move amendment No. 149:
In page 10, subsection (3), lines 46 to 48, to delete all words from and including ", the " in line 46 down to and including "child" in line 48 and substitute the following:
"the Council shall, subject to subsection (4), ensure that there are provided to him or her such of the services identified in the education plan prepared in relation to the child as are necessary to enable him or her to participate in and benefit from education”.
As the subsection stands, it places a duty on the council to provide a service. As envisaged, the council will not have a role in the direct provision of services. Members will recall there was a very strong feeling among parents and parents' groups that the provision of services should be separate from the council. The council has, however, a co-ordinating and planning role and a general duty to ensure that children receive the education related services they need. The direct providers in terms of the pure education services will continue to be the schools and the Department of Education and Science. I believe amendment No. 149 more accurately reflects this particular situation.
On amendment No. 152 — we have already discussed amendments Nos. 144, 145 and 148 — there is consensus that there should not be a time delay in ensuring the provision of services. For that reason, I do not think amendment No. 152 makes any substantive change and I cannot, therefore, accept it.
I accept the Minister's explanation. I am happy with amendment No. 149. I do not understand what harm accepting amendment No. 152 would do except to——
Yes, but words are important. The Minister is adding words all the time. Acceptance of this amendment would impart a sense of urgency that there should be no delay.
Amendment agreed to.
Amendments Nos. 150 to 158, inclusive, not moved.
Amendment No. 160 is an alternative to amendment No. 159; amendment No. 164 is related to amendment No. 160; amendment No. 164 is an alternative to amendment No. 163 and amendment No. 167 is related to amendment No. 159. Amendments Nos. 159, 160, 163, 164, 167 and 169 may be taken together by agreement. Agreed.
I move amendment No. 159:
In page 11, subsection (5), line 6, to delete "3 months" and substitute "1 month".
This amendment relates to timescales. We all agree the Minister needs to go off and spend time looking at time, not doing it, but looking at it.
Amendment, by leave, withdrawn.
Amendment No. 160 not moved.
Amendments Nos. 161, 162 and 166 are related and may be taken together by agreement. Agreed.
I move amendment No. 161:
In page 11, subsection (5), line 9, to delete "Appeal Board may" and substitute "Appeals Board will".
In one instance the board is called the "Appeals Board" and later on it is called the "Appeal Board". I presume that is a technical error. More importantly, the words "may determine" are used. Does that mean the Appeals Board could decide not to make a decision and leave the matter in abeyance? My amendment seeks to ensure that the Appeals Board "will" determine which of them will provide the services and give a direction about which there is no doubt.
I accept amendment No. 162 which states that the board "has to" rather than "can" make a determination and will bring forth the required amendment on Report Stage.
Amendment No. 161 relates to a technical point as to whether the board is called the "Appeal Board" or "Appeals Board". I am sure it is just a typographical error.
I am sure we can make a formal amendment at a later stage.
I am advised amendment No. 161 might better be dealt with on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 162 not moved.
I move amendment No. 163:
In page 11, subsection (5), line 9, after "determine" to insert ", having regard to the effective delivery of such support services in the best interest of the person concerned,".
This amendment qualifies what is going on. It guides the Appeals Board in coming to a determination. The Minister may say that is already implicit in the Bill.
I have already dealt with the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 164 to 167, inclusive, not moved.
Section 6, as amended, agreed to.
SECTION 7.
Amendments Nos. 168, 169, 171, 174, 177, 180 to 187, inclusive, may be taken together by agreement. Agreed.
I move amendment No. 168:
In page 11, lines 14 to 51 and in page 12, lines 1 and 2, to delete subsections (1) to (5) and substitute the following:
"7.—(1) (a) An assessment for the purposes of this section shall include an evaluation and statement of the nature and extent of the person’s special education needs and abilities (including in respect of matters that affect the child overall as a person) and an evaluation and statement of the type of service which the person needs so as to be able to participate in and benefit from education and to develop his or her potential to the fullest possible extent. The assessment must be carried out by professionals relevant to the person’s difficulties. The assessor(s) must be independent of the bodies that deliver special need educational and health services.
(b) The Council upon being informed by a parent/guardian, health, education or law enforcement professional that a person has special educational needs, shall, unless an education plan has been or is being prepared under section 3 in respect of the child, direct an assessment to be carried out and direct the special educational needs organiser to cause an individual education plan to be prepared from the assessment for the appropriate education of the person.
(2) The relevant special educational needs organiser will convene a group of persons (in this act referred to as a ‘team') to prepare an individual education plan.
(3) (a) A team shall include parents, guardian or some representative of the person’s family and the person where (or in as far as) the person is able to participate constructively in preparation of the plan. These members of the team have a power of veto on any provision within the Individual Education Plan (IEP),
(b) relevant teaching staff (teacher(s), tutor, special needs assistant, remedial teacher, principal),
(c) Educational Psychologist and any other psychologist, therapists and medical/health professional appropriate to the person’s assessed needs, and
(d) any other persons whom the parents/family representative or the special educational needs organiser consider have special expertise regarding the person.
(4) In preparing an education plan the team shall have regard to all assessed needs relevant to learning and shall ensure that these needs are incorporated in the individual education plan.
(5) A parent/family member of the child concerned shall not be a member of a team unless he or she consents to being such a member.".
Section 7 is a crucial section. Some of the amendments tabled by the Minister seek to delete what he considers superfluous or complicated. My amendment seeks to add a preamble, section 7(1)(a) which includes an evaluation and statement of the nature and extent of the person’s special educational needs and abilities in an overall context. This would provide a background to how assessments would be carried out under the direction of the council. I have included at the end of 7(1)(a) that “the assessor(s) must be independent of the bodies that deliver special needs education and health services.” This is crucial for parents.
The new subsection (b) which I propose is broadly the same as the original section 7(1) so I will not discuss it. In my proposed replacement for section 7(2), I propose the wording that the relevant special educational needs organiser, SENO, “will” rather than “may” because the word “will” is more decisive than “may”. It should now read “will convene a group of persons (in this Act referred to as a ‘team’) to prepare an individual education plan”. I use the term “prepare an education plan” as opposed to “to provide advice to” the SENO on the preparation of a plan because if we take the idea of a team on board, the approach should be team based and the team should prepare the plan. This is the reason I suggest we say to prepare an individual plan rather than provide advice. This puts more focus on the special educational needs organiser who has to co-ordinate the whole team based approach. Section 7(3) is similar in some parts. Section 7(3)(a) broadens out who would be involved and who the team would include. It should include parents, guardians or representatives of the family, providing these persons are able to participate constructively and are not, as in some cases, slightly dysfunctional. My version would say that the members of the team should and would have the power to veto any particular provision within the education plan. This would mean that the team, including the SENO, would put forward a plan agreeable to everyone.
The Minister, as we can see from proposed amendments, has removed or amended to some degree paragraphs (a), (b), (c) and (d) of section 7(3). I propose that there should be some additions in terms of the psychologist. It should read “Educational Psychologist and any other psychologist, therapists and medical/health professional appropriate to the person’s assessed needs”. That would differ in terms of what was originally put down as a psychologist employed by the Minister or by NEPS.
My proposal for section 7(4) is also slightly different. I propose that "In preparing an education plan the team shall have regard to all assessed needs relevant to learning and shall ensure that these needs are incorporated in the individual education plan". This wording is probably a shorter way of say something similar to what is in the Bill. Section 7(5) is broadly similar and I have not suggested any change to it.
The Minister has made some changes with his proposed amendments. I was going to suggest changing the text to give more of a focus to the team and a more definite role for the SENO and the team in terms of "will convene a group of persons" and "will prepare an education plan" rather than "may prepare" one. However, given the Minister's amendments regarding who will be on the team, I ask him for some feedback as to his reasons for making changes. Does he agree that the team should have some element of a veto and that the special educational needs organiser "should" rather than "may" convene a team of persons?
There is a lot of detail in this group of amendments. Amendment No. 169, which I propose, suggests the wording that "The Council, upon being informed by a health board or the principal of a relevant school ...". I am afraid children might fall through the net because the onus is on the principal of the school or the health board to inform the council that a plan needs to be drawn up. The reason I propose this amendment is to ensure that no child falls through the net. If the principal or health board does not inform the council the plan might not be drawn up and I want to ensure that all children who need it are subject to an education plan.
My other amendment substitutes the word "shall" for "may" and other Members have made the same suggestion. It is necessary to say that the special educational needs organiser "shall" convene a group of persons rather than "may" convene a group of persons.
I also want to tease out further the issue of the psychologists. Deputy Gogarty's amendment on 7(1)(a) seems to suggest that health board or NEPS psychologists should not be involved but that the assessors should be independent of the bodies that deliver special educational needs and health services. Perhaps he will respond on that later. We need to tease out who the assessors will be. The Bill states that it is a psychologist employed by the Minister or the national education psychological service or a person determined to be suitable. There is a role for independent, for want of a better word, psychologists and for the parent to have a say in that regard in certain circumstances. In section 5, the earlier part of the Bill, it simply states that it should be a psychologist and does not state that it should be a NEPS psychologist. We need clarity on the Minister’s intentions in this regard as there is some confusion regarding what roles are fulfilled by NEPS psychologists and what roles can be fulfilled by others.
I compliment the Minister on the language used in the Bill. I welcome that he has moved away from the term "educational disability" to "special educational needs" as in "The Council upon being informed by a health board or the principal of a relevant school that a child has special educational needs".
I have a question regarding amendment No. 168, proposed by Deputy Gogarty, which mentions law enforcement personnel. I find this curious and it reminds me of other groups which might also be involved, such as our youth service which needs a lot of support and resources. That service also covers professionals involved with out of school activities who might also identify special educational needs. Has the Minister considered the role of youth services in the informal education setting which also comes under his remit? Professional qualified youth workers might come across persons with such needs. Law enforcement professionals might also include people from the education welfare service. This concerns children who may not be attending school and where, perhaps, somebody from the education welfare service might identify needs. Has the Minister considered the involvement of the education welfare service in this legislation? Has that service a role or would it be involved through the school? It is something which has not been mentioned so far.
I support those amendments proposing to substitute the word "shall" for "may". This substitution would make the legislation firmer and stronger. I know the Minister had problems with a similar proposal in an earlier amendment.
I note the Minister has tabled amendment No. 177 and I welcome that change. In amendments Nos. 181 and 182 there is the use of the singular and the plural which on an earlier occasion the Minister stated he would consider changing. Amendment No. 183 proposes the phrase, "and recognised qualification". The thinking behind it is that people may have expertise without being qualified. It is also the case that people may have qualifications without having expertise. The Minister has indicated he will examine the issue of the registration of psychologists and how they will be described in the Bill. Amendment No. 185 is similar.
I wish to clarify some of the queries raised by other members. Subsection (1)(b) of my amendment No. 168 refers to the term “law enforcement professional”. This is a broad term and does not only mean community gardaí, but also the educational and welfare service or social workers as they are all trying to enforce the law dealing with education.
Subsection (3)(d) of the amendment is in conflict with the Minister’s changes to lines 41 to 46 on page 11. The Minister’s amendments deal with expertise in terms of holding a qualification granted or awarded by a professional body, to which Deputy Stanton also referred. My amendment proposes it should be any other person whom the parents or family representative or the special educational needs organiser consider to have special expertise regarding the person. As Deputy Stanton said, a qualification in itself may not always be a totally helpful way to look at the best educational interests of the child with a learning disability. If the parents or family representative consider there is someone else with special expertise, that information should be considered. The special expertise might include, for example, legal expertise. A broader scope is required, which my amendment would provide. I look forward to the Minister’s comments.
Amendment No. 171 proposes the deletion of a phrase in section 7(1), "unless an education plan has been or is being prepared under section 3 in respect of the child,”. I do not know whether it is necessary. Under section 3, the council will be informed by the principal. I ask the Minister to explain what is the purpose of the phrase because it appears to conflict with section 3, where the principal can ask the council or the health board and will have done so anyway. It seems to be a little convoluted and I suggest it might be better deleted.
I support amendment No. 168 and the points raised by Deputy Gogarty. I remind Deputies that when we are talking about teams and plans, it is crucial to retain the focus on the special needs of the child with a disability. The parents must have a central and important role regarding any plan or team. I welcome the proposal in the Bill that the team shall include parents, guardians or some representative of the parents' family and the person where the person is able to participate constructively in the preparation of the plan. I welcome this section and also the section dealing with the relevant teaching staff, special needs assistants and the principal. They are very relevant to the daily life of the child, particularly if the child is present in school for five or six hours every day.
I support the amendment but I am concerned that the Bill may provide for the involvement of too many people and too much staff. I do not wish to see a drift from the focus of the Bill, which is concerned with the needs of the child. We must face up to the reality that there are 15,000 children with disabilities in mainstream primary schools and 6,000 in special schools. They must be the priority. Overall this is an effective amendment.
I will deal with these amendments as carefully as I can. My amendments propose fairly substantial changes to the section. Obviously the Deputies opposite listened to the same people as we did when we were trying to draft the amendments. There is a fair amount of convergence in the amendments proposed.
As the section stands, parents must be members of a planning team while the school principal or a nominated teacher may also be a member. In practice, it is very difficult to envisage a situation as to how an education plan could be drawn up without the active participation of the principal or of the teacher. My amendments Nos. 177 and 180 will change the section to make their involvement mandatory and I believe that is only as it should be. Amendment No. 184 will allow parents of a child to nominate a person or persons to participate in the assessment process. The provision at present allows it to happen but only with the consent of the organiser. Deputies opposite will have heard the arguments for change to the effect that the current provisions display a suspicion of parents and diminishes their role as the principal and primary educators of their children. Parents are also the principal carers of children.
We anticipate that the person most likely to be nominated by the parents is a psychologist but that may not always be the case. There may be a concern that a parent may seek to have people involved who are unqualified. We are trying to balance that with the requirement that there should be qualifications. I take the point made by Deputies who have stated that one does not necessarily require a qualification to know the child but that is the role of the parents. The parents know the child. Where a team is involved in building an education plan for a child because of particular and special disabilities, it is necessary to have people involved who are qualified to put forward views and suggestions about the plan. These two amendments deal with many of the issues raised in amendments Nos. 168, 185 and 186.
My amendment No. 184 refers to a recognised qualification. The committee discussed the issue of recognition and on the basis of what I said then I will examine more closely amendment No. 183 to see if it can be incorporated in spirit. Amendment No. 187 is a technical amendment in my name. It rephrases and improves the phrasing in section 7(4). A number of other amendments have included helpful suggestions to improve the drafting of the Bill. I will reconsider amendments Nos. 169, 181 and 182. These appear to be drafting changes, which I will consider between now and Report Stage to see if they can be adopted.
I am not prepared to accept amendment No. 171, which would have the effect of requiring the special educational council to prepare an education plan even where one is in train or already completed by the school. This would create unhelpful duplication and confusion. I know this is not the Deputy's intention. However if a plan were in train or in place, this amendment would not be helpful.
My reading of amendment No. 174 is that it seeks to impose a requirement on a special educational needs organiser to convene a multi-disciplinary assessment team in all circumstances. The effect of amendment No. 178 would be to require each team to include professionals whose knowledge or expertise would not be required. This would not be a good way of using our resources.
In enacting this legislation we are giving responsibility to the new special educational council to ensure that children with educational disabilities are provided with appropriate education. We cannot legislate for everything. The council must be given a certain amount of discretion as to how it performs those functions, particularly in the area of assessment, which all Deputies agree must be tailored to meet the needs of individual children. If we were to impose a straitjacket on the council as to how it functions by stating that it must get all these people together, they would all feel they must do something even if this is not necessarily in the best interest of the child. We would end up with a "one size fits all" model, which would not meet the individual needs we are discussing. In view of this I will not accept amendments Nos. 174 and 178 as they do not add anything to the Bill and could have the effect of hamstringing the council in using its discretion.
I seek further clarification. Would it be up to the special educational needs organiser to decide whether to convene the team or to make the decision alone? Is this to be done purely on the judgment of the special educational needs organiser, as appears to be the case from the wording of the Bill? Is it correct that when the team is established it may contain a NEPS psychologist and also possibly another psychologist or other professional suggested by the parents or the special educational needs organiser under section 7(3)(d)?
We are not saying it has to be a NEPS psychologist or other psychologist. The person appointed needs to have proper qualifications. In some cases it would be a NEPS psychologist and in other cases it could be another psychologist. Earlier we discussed clarifying this further and suggested the possibility of the council having a list of recognised psychologists available. Some of these could come from the private sector and others from NEPS or the health boards. There would be no restriction on that. We are more concerned with qualifications.
There is a broad template of qualifications for educational psychologists. All the psychologists employed by NEPS must have certain qualifications. Some of the psychologists we have recruited to NEPS have their qualifications from the United States or Canada. Provided the qualifications are broadly similar and accepted as qualifications here, a psychologist could go on the list. We will try to clarify this and perhaps give power to the council to draw up such a list of psychologists.
I refer to amendment No. 171. As the Minister knows there are at least two different types of plans: the school-based plan, which is prepared under the direction of the principal, and the plan prepared under the direction of the council. Section 7(1) states: "The Council upon being informed by a health board or the principal of a relevant school that a child has special educational needs, shall, unless an education plan has been or is being prepared under section 3 in respect of the child,...”. My reading of this is that it covers both types of plan mentioned in section 3 — the school plan and the one prepared by the council. Up to now I understood that if the principal is unhappy with the school based plan, he or she could ask the council to prepare one at council level, which the Minister has indicated would be far more detailed and involve greater difficulties, etc. However, section 7(1) seems to indicate that if the plan prepared by the school were in train, the council could not prepare one as it specifically states, “unless an education plan has been or is being prepared under section 3...”. It does not specify which plan.
There appears to be a contradiction in this and the council could be legally prevented from preparing a plan if a school-based plan was prepared or was in the course of being prepared under section 3. This is the reason for the amendment. If the principal were to make such a request, the council should be allowed to proceed. However, this subsection prevents the council from doing so.
The Deputy may have a point. My drafters will pardon me if I say that this was originally included, but when we changed to make the distinction in section 3 it was not spotted.
Initially, I suggested that we might have to indicate a difference between the plans prepared by the council and the plans prepared at school level. They are now two different matters. Throughout the Bill I have suggested using a term such as "special education programme" where the council was involved to make it clear that the plan was at school level but the programme, or whatever term might be used, was prepared by the council.
Even in the Minister's proposal for section 7(1), there is already a contradiction and confusion. When this reaches the wider educational community there will be further confusion as to which plan is being discussed. People might state a plan is being prepared thinking it is a council-based plan when it might be a school-based plan. The Minister should clearly differentiate between the plans by naming them differently. While I may be splitting hairs here, we have already seen how the difficulty has arisen and can lead to a direct contradiction. The Minister seems to agree.
I believe amendment No. 171 would be useful and perhaps the Minister could come back with amended proposals.
Amendment put.
The Committee divided: Tá, 5; Níl, 7.
Tá
- Crowe, Seán.
- Gogarty, Paul.
- Kehoe, Paul.
- O’Sullivan, Jan.
- Stanton, David.
Níl
- Curran, John.
- Dempsey, Noel.
- Finneran, Michael.
- Hoctor, Máire.
- Killeen, Tony.
- McEllistrim, Thomas.
- O’Keeffe, Ned.
Amendment declared lost.
Amendments Nos. 169 and 170 not moved.
I move amendment No. 171:
In page 11, subsection (1), lines 16 and 17, to delete ", unless an education plan has been or is being prepared under section 3 in respect of the child,”.
I will withdraw this amendment because the Minister has indicated that it needs to be examined.
Amendment, by leave, withdrawn.
I move amendment No. 172:
In page 11, subsection (1), line 18, to delete "plan" and substitute "special individual education programme".
We need to differentiate between the two terms mentioned in this amendment. I wish to press this amendment because it is important to emphasise that there should be a differentiation between the two types of plan. This will help to avoid confusion, if nothing else. I ask the Minister to call it something else. I ask him to indicate that he is amenable to examining something of this type.
This is an example of a place where we did not get the surgery right. We have brought forward amendments to provide for a distinction of the type suggested by the Deputy throughout the Bill. There will be an education plan. I do not think it matters whether it is called a "school education plan" or a "council education plan", as such phrases are confusing. I accept the Deputy's argument that there is a need to draw a distinction in section 7(1). I do not think that this problem will necessarily be solved by calling plans different names. Something more is needed.
Amendment put and declared lost.
I move amendment No. 173:
In page 11, subsection (1), lines 19 and 20, to delete "an "education plan" " and substitute "a ‘special individual education programme' ".
It is unlikely that the Minister will accept this amendment, so I will withdraw it.
Amendment, by leave, withdrawn.
I move amendment No. 174:
In page 11, subsection (2), line 21, to delete "may" and substitute "shall".
Having examined this amendment, I think the Deputy may have a point. The effect of the amendment will be to convene a parent and a teacher to a meeting. This is something that should be done in the interests of discussion. I initially misread the intent of the amendment when I thought it would mean the entire team would have to be convened on each occasion. The Deputy has a point when he argues that a team should be convened regardless of its size. I will accept the amendment.
Amendment agreed to.
I move amendment No. 175:
In page 11, subsection (2), line 23, to delete "plan" and substitute "special individual education programme".
I assume that the Minister has not changed his mind since we discussed this amendment earlier.
Amendment, by leave, withdrawn.
I move amendment No. 176:
In page 11, subsection (2), lines 23 and 24, after "concerned" to insert ", which shall be completed within one month from the date the team is convened,".
The Minister has agreed that he would examine this amendment.
Amendment, by leave, withdrawn.
I move amendment No. 177:
In page 11, subsection (3), line 27, after "concerned" to insert "and the principal of the relevant school, or a teacher of that school nominated by that principal to be a member of the team,".
The Minister has brought forward this amendment to accommodate some of the points made on Second Stage.
Amendment agreed to.
I move amendment No. 178:
In page 11, subsection (3), line 27, to delete "may" and substitute "shall".
Having accepted amendment No. 174, perhaps the Minister will accept this amendment at this stage.
No, not in this case. It would have the effect of making the special needs organiser convene the entire team.
Section 7(3) uses the phrase "one or more of the following". A team of one kind or another would have to be convened even if it is just one person. It is the same point. Otherwise, one will have a situation in which the special needs organiser could be left in the position of not convening a team of any kind. In this regard, he or she has to do something. It is the same point as the one to which amendment No. 174 related.
As provided, the team must contain a parent and a teacher. If the word "shall" were to be included it would be necessary to get someone other than the parent and the teacher, even if that were not necessary. It is a different point.
Amendment, by leave, withdrawn.
I move amendment No. 179:
In page 11, subsection (3)(a), lines 30 and 31, to delete “educational disability” and substitute “special educational need”.
This is the same point as the one already discussed. I favour this amendment because its wording is positive rather than negative. The Minister has already spoken about special educational needs. I am inclined to press the amendment.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 180:
In page 11, subsection (3), lines 32 to 34, to delete paragraph (b).
Amendment agreed to.
Amendments Nos. 181 to 183, inclusive, not moved.
I move amendment No. 184:
In page 11, subsection (3), lines 41 to 46, to delete paragraph (d) and substitute the following:
"(d) any other person whom the parents or the special educational needs organiser consider appropriate and nominate to be a member of the team, being a person who holds a qualification granted or awarded by a professional body, which qualification—
(i) relates to the education of children with educational disabilities, and
(ii) stands recognised for the purposes of this paragraph by the Council.".
Amendment agreed to.
Amendment Nos. 185 and 186 not moved.
I move amendment No. 187:
In page 11, subsection (4), line 47, to delete "In preparing an education plan" and substitute "With respect to the preparation of an education plan under this section".
Amendment agreed to.
Question, "That section 7, as amended, stand part of the Bill", put and declared carried.
SECTION 8.
I move amendment No. 188:
In page 12, subsection (1), line 11, before "education" to insert "individual".
This amendment was discussed already. The Minister indicated that he was not prepared to insert the word "individual" before the words "education plan". It is important to indicate explicitly that the plans are individual. Unless the Minister has had a major change of heart, I will withdraw the amendment. I see no indication to the contrary from the other side.
Amendment, by leave, withdrawn.
Amendments Nos. 189 and 190 not moved.
I move amendment No. 191:
In page 12, subsection (2)(a), line 17, after “child’s” to insert “or student’s”.
I am amazed this amendment was included on the list of amendments.
Some of them I am not sure about.
I wish to amend the subsection to refer to the nature or degree of the child's or student's abilities, skills or talents. An issue raised earlier re-emerges here. It involves cases where a person over the age of 18 years remains in a school and the council must prepare a plan. My amendment seeks to allow the council to involve or look after a student who is over the age of 18 and remains in a school. The Minister indicated yesterday that such persons would be protected and supported by the council. While the student remains in the school, he or she is the responsibility of the Minister for Education and Science. The Minister said yesterday that the lack of a constitutional requirement does not mean he could not introduce a legislative requirement to cater to such special needs students if he wished. Amendment No. 191 provides the Minister with the opportunity to permit the council to cater to these students.
We have discussed this matter on a number of occasions. I will not change my mind on it. I wish to protect and cater for the constitutional rights of children up to the age of 18 years through this legislation. The practical issues involved after a special needs child reaches the age of 18 will be dealt with in the disabilities Bill. I will not accept the amendment.
Amendment put.
The Committee divided: Tá, 5; Níl, 7.
Tá
- Crowe, Séan.
- Kehoe, Paul.
- Gogarty, Paul.
- O’Sullivan, Jan.
- Stanton, David.
Níl
- Andrews, Barry.
- Curran, John.
- Dempsey, Noel.
- Hoctor, Máire.
- Killeen, Tony.
- McEllistrim, Thomas.
- Finneran, Michael.
Amendment declared lost.
Progress reported; Committee to sit again.
The select committee adjourned at 3.35 p.m. until 9.30 a.m. on Wednesday, 28 January 2004.
