Dáil Éireann Debate, Tuesday - 22 May 2018
37. Deputy Thomas Byrne asked the Minister for Education and Skills his views on whether in the case of a proposed expulsion or suspension of a child with special needs, the section 29 procedure is inappropriate; and his plans for reform in the area. [22704/18]
Amharc ar fhreagraThe forced overuse of the section 29 procedure by parents of children with special needs is a scandal in Irish education. Section 29 is the appeals procedure for refusals to enrol and suspensions and expulsions. Figures I received in answer to parliamentary questions earlier this year show that special needs children are hugely disproportionately represented among those who have to go through the section 29 procedure.
The code of behaviour each school is required to develop has to set out the procedures, particularly procedures relating to the suspension of children with special needs. The guidelines set out the approach that should be taken in taking account of the particular needs of children with special needs, including that the school meets with parents, makes sure that the child understands the possible consequences of his or her behaviour, ensures that all possible alternatives have been explored and that the assistance of support agencies is sought where possible.
I share the Deputy’s concerns, but I want to make sure that we do not run into difficulty where parents find it difficult to find another school for their child. While continuing to have the section 29 appeal in place, which includes a facilitation process in advance of an adjudication process and hearing, we are also giving the NCSE the power to designate a place for such a child via legislation. I hope that parents will have a choice of either going down the section 29 appeal route or alternatively that they can seek a designation of another school from the NCSE. I am seeking to progress that.
I welcome change in this area, but it really needs to be highlighted because this is an issue affecting both mainstream and special schools. The idea that a child with special needs would be expelled from a special school is a cause for shame for our society. The difficulty with section 29 is that it is not the correct system. Schools are put in difficult positions and adversarial relationships are created. Lawyers are appointed by schools in many cases, and it is not often possible for parents to follow suit. I have come across a case, which I raised with the Minister's officials recently, where a child with severe special needs was left with no education whatsoever because of expulsion. That is not right. Children are suspended at first and then expelled. In this particular case the child has effectively been deprived of his or her education for the last year.
In 2014 there were 225 appeals under section 29, and 58 involved children with special needs.
In 2015 there were 231 appeals, of which 64 involved children with special needs. In 2016, out of 218 section 29 appeals, 65 of the applicants indicated that the child had special educational needs. It is a disgrace to our society that those families and those children are put through this, whether it is because of a refusal to enrol, a suspension or an expulsion. It is just not the way we should be treating children with special educational needs. This is a small number of children in the overall scheme of things. The devastation it causes families is absolutely horrendous.
I can appreciate what the Deputy is saying. That is why two changes are being made in the legislation. One change gives the National Council for Special Education, NCSE, a right to make a submission to the section 29 hearing. The second gives the NCSE a separate power to designate a school as suitable. While it is certainly very unfortunate that a section 29 procedure would be used, bearing in mind the guidelines and facilitation that are being put there to try to ensure such a breakdown does not arise, I am also ensuring that if it has to go to hearing, there is an alternative, namely, that the NCSE can designate a suitable alternative. Moreover, if it goes the section 29 route, the NCSE itself can be a part of that process.
At the end of the day, if the matter comes to the point of an institution saying that it cannot continue, it has to be adjudicated in some way that is fair to all sides. Section 29 is a long stop that has to be there but I hope these measures will offer alternatives to parents who are facing the sort of situation the Deputy describes.
I welcome the changes that are coming in the Education (Admission to Schools) Bill 2016. That Bill will hopefully be before the Dáil next week. We have pushed for it to be passed for quite some time and I really hope that it offers some of these families what they need, which is an entitlement to an education without having to go through bureaucratic hula hoops. It is outrageous. We look forward to change in this area but in the case of children with special educational needs, it is not a question of having to be fair to both sides. The child is entitled to a free primary education under the Constitution. As such, there is no issue of fairness to the school. The State has an obligation to educate that child, and in cases of which I am aware, the child is effectively being refused their constitutional right to education because of these procedures. I will certainly work with the Minister to change this but I want to see the changes make a difference in practice. Rather than trying to be fair to both sides, the State needs to protect the constitutional right to primary education, which for a lot of children with special needs applies up to the age of 18. We need to protect, defend and vindicate that right by giving these children their education.
The purpose of section 29 is that it looks at the whole case de novo. It is not part of a bureaucratic process whereby the parents may feel they have been through the board and the principal only to get the same response. This is an entirely fresh look at the issues by fresh eyes. Those making the decision have access to the NCSE evidence and look at whether the decision of the school was justified given the circumstances. They bear in mind the guidelines that are supposed to be applied sensitively for children with special needs and we now have this alternative. I am happy to discuss this and if there are improvements we can make, I am more than pleased to make them. I think the improvements that are outlined here will make it easier for parents.
