Policy, Legislation and Practice for Children with Special Needs in Ireland. Mary Meaney

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1 136 Policy, Legislation and Practice for Children with Special Needs in Ireland Mary Meaney Introduction This paper will address issues of policy, legislation and practice in early childhood care and education for children with special educational needs. It will seek to indicate how the care strand and the education strand have, in practice, developed along separate lines and how legislation and official policy have influenced this separation. The paper will also give a short overview of some of the provisions of the Education for Persons with Special Education Needs Act, which was signed into law in July It will outline how the Department of Health and Children (DHC) and the Department of Education and Science (DES) will be required to co-operate in the provision and planning of supports for the education of children with special needs. Scope of Paper When we speak about the early childhood stage, we speak about children in the age range from zero to six years. Childcare and education for this age group takes place in the home, in childcare or pre-school services and in schools. This paper deals with the formal schooling stream where children aged four and over are eligible to enrol in national schools (DES, 1965:Rule 64 (1)) and with the pre-school/play school/childcare sector for children in the under six age group. For the purposes of this paper, special educational needs is interpreted as a restriction in the capacity of the person to participate in and benefit from education on account of an enduring physical, sensory, mental health or learning disability or any other condition, which results in a person learning differently from a person without that condition. (DES, 2004) Legislation for the Welfare and Education of Children The enactment of the Child Care Act 1991 was the first comprehensive piece of legislation on children s welfare since independence (Department of Health [DoH], 1991). The Education Act (1998) put the system of education, which had been in operation since 1831, on a statutory basis (DES, 1998). It sets out the relevant law for schools, while the Child Care Act 1991 outlines the provisions for preschools and childcare facilities. In each case, the legislation makes it clear that it deals exclusively with one or other sector. The Education Act includes within the definition of a school an establishment, which provides primary education to its students and which may also provide early childhood education.

2 Policy, Legislation and Practice for Children with Special Needs in Ireland 137 It specifically excludes institutions or schools established under the Health Acts or the Child Care Act, 1991 (DES, 1998:Section 2.1). Pre-school services are subject to the provisions of the Child Care Act This Act gives a wide interpretation to pre-school service, defining it as any pre-school, play group, day nursery, crèche, day-care or other similar service which caters for preschool children, including those grant aided by health boards. (DoH, 1991:Section 49) The Act excludes national schools by means of the definition of a pre-school child. Pre-school child means a child who has not attained the age of six years and who is not attending a national school or a school providing an educational programme similar to a national school. (Dott, 1991, Section 49) These two pieces of legislation, by their definitions, recognised the de facto separation of the care and education strands of development which have emerged in practice. Legislation, Regulations and Definitions of Quality Each piece of legislation incorporates statements about quality and service. The Education Act (1998) requires the Minister for Education and Science to ensure that there is made available to each person resident in the State, including a person with a disability or who has other special educational needs, support services and a level and quality of education appropriate to meeting the needs and abilities of that person. (DES, 1998:Section 7.1) The Child Care Act assigns functions to the Minister for Health and Children to make regulations for the purpose of securing the health, safety and welfare and promoting the development of preschool children attending pre-school services. (DoH, 1991:Section 49). The very recent Education for Persons with Special Educational Needs Act (2004) aims for co-ordination and consistency across the two parent departments (health and education) in relation to support services for the education of persons with special educational needs. To achieve this end, it confers duties on the Minister for Health and Children and on the Minister for Education and Science. The Child Care Regulations specify that every pre-school service provider is to ensure that every pre-school child attending the service has suitable means of expression and development through the use of books, toys, games and other play materials, having regard to his or her age and development. (DHC, 1998:8) There are no specific references to any form of special need. There are specific conditions about first aid and medical arrangements, a ban on the use of corporal punishment, keeping of a register, the state of the premises, heating and lighting arrangements and adult-child ratios. In several respects, the Pre-school Regulations and the Rules for National Schools have similar provisions, particularly so in terms of the physical environment. However, the adult child ratio is an area of very significant difference. Children in the infant section in a national school may well be in a class of over twenty and could be in a class of over thirty. In view

3 138 of the policy of inclusive settings for education (DES, 2004:Section 2), children with special needs will find themselves in much larger groups in national schools than their peers in pre-school services. On the other hand, children in special schools are placed in small groups and the adult-child ratio is much lower than in schools. The Education Act provides for inspection of schools, while the Child Care Act provides for the inspection of pre-school services. The Education Act, in addition to systems level inspection, makes explicit provision for an inspector to assess the implementation and effectiveness of any programmes of education devised in respect of individual students who have a disability or other special educational need. To date, the various inspection reports have not been available to the public. Policies, Practices and Participation As education in Ireland is not compulsory for children until they reach six years of age (DES, 2000), the early childhood education provision in national schools is actually outside the scope of compulsory education. Departmental policy and parental practices indicate varying degrees of indifference to this provision. The Rules for National Schools are explicit about the entitlement of children to enrol in national schools after they have reached their fourth birthday. The curriculum for primary schools incorporates detailed guidelines for the infant sector and gives it equal treatment alongside the first to sixth class programmes (DES, 1999a). Parental choices mean that, in practice, there is a high level of participation of four and five year olds in schools. Statistics from the DES show that there were 27,043 four and 55,465 five-year olds attending national schools during the 2002/2003 school year and 960 three-year olds attended various pre-schools funded by the Department, mainly the Early Start centres. The total figure of 83,428 pupils means that the DES is the largest funder of early childhood provision in the State (DES, Forthcoming). The figures include over a thousand children with identified special educational needs in ordinary national schools and almost three hundred in special national schools. The breakdown is as follows: There were three three-year old children, 339 four-year olds and 834 five-year olds with special educational needs giving a total of 1,176. The special schools catered for six three-year olds, 99 four year olds and 182 five year olds enrolled for the 2002/3 school year, making a total 287 children (DES, Forthcoming). The past number of years has seen a very significant increase in the enrolment of children in the range of pre-school services. This practice reflects, to some extent, the increasing participation of mothers in the workplace. One fifth of children in the zero to four age bracket whose mothers are engaged in home duties are enrolled in some form of paid

4 Policy, Legislation and Practice for Children with Special Needs in Ireland 139 childcare (Department of Justice, Equality and Law Reform [DJELR], 1999:Table 2.2) as compared with three quarters of those who mothers are engaged in a full time job. Under the Child Care Act (1991), service providers must notify the DHC of their services. As of late 2003, there was a total of 4,202 services providing approximately 70,791 childcare places (Source: Child Care Policy Unit, DHC). This total is quite close to the number of four to six year olds in national schools. Information was sought from pre-school officers and from the DHC about the number of children with special educational needs and/or disabilities. The responses indicate that these figures are not available. The two sectors, pre-school services and national schools, provide approximately 154,000 places for children. To put this figure in context, the entire population of under sixes in the State is 332,477 (Census 2002, Volume 2). This means that the majority of children in the early childhood age range (approximately 178,256) do not attend any type of formal provision. Therefore home/ family settings remain the largest providers of early childhood care, development and education. In provision outside the home, a dual or parallel system has emerged in which the educational and care strands of development have become segregated. The Educational Research Centre (ERC) has highlighted the limitation of this situation: It is perhaps unfortunate that child-care and educational programmes have grown independently of each other and that communication between the two traditions has been rather limited since, viewed from the child s point of view, it is unlikely that either type of programme on its own can fully meet the needs of the child. (ERC, 1998:112) The newly enacted provisions in the Education for Persons with Special Educational Needs Act (2004) aim to reduce the degree of segregation and to achieve co-ordination between the DHC and DES in terms of the planning and provision of support services for the education of children with special educational needs. It will however, be at best, several years before all of the provisions of the Act are implemented. Government Departments, Policies and Reports One of the practices in terms of special needs care, education and development is that many government departments have responsibility for a part of the service. At a minimum, three government departments are each involved with a particular perspective. The concept of special needs is sometimes treated as an education issue, at other times it is considered with a medical or health focus and on yet other occasions is viewed as an equality matter. These three viewpoints are closely reflective of the divisions which in practice operate across the DES, DHC and DJELR.

5 140 In 1990, the Report of the Review Group on Mental Handicap Services was presented to the Minister for Health (DoH, 1990). Ten years ago, the Report of the Special Education Review Committee was published by the Department of Education (Department of Education [DoE], 1993). The report on the Commission on the Status of People with Disabilities was presented to the Minister for Equality and Law Reform in 1995 (Department of Equality and Law Reform, 1995). In 1998, the DES published the Report on the National Forum on Early Childhood Education (Coolahan, 1998). It was followed by the White Paper on Early Childhood Education, Ready to Learn (DES, 1999b). The DJELR published the National Childcare Strategy (DJELR, 1999) and three years later, produced the Model Framework for Education Training and Professional Development in the Early Childhood Care and Education Sector (DJELR, 2002). This gives some indication of the fragmentation of responsibility for early childhood care, development and education throughout civil service departments. The Influence of Litigation on Legislation, Policy and Practice In the early 1990s, a case was taken on behalf of a then eight year old boy, Paul O Donoghue, which would have profound effects on special education provision in Ireland (Irish Reports, 1996:21). The case concerned the right to education of a young boy with severe disabilities and the alleged failure of the State to provide for his education. The State opposed the claim on the following grounds, among others: That the child, by reason of being profoundly mentally and physically disabled, was ineducable, and that all that could be done for him to make his life more tolerable was to attempt to train him in the basics of bodily function and movement; That, when the Constitution speaks of a guarantee of free primary education, what is referred to is the conventional type of primary education, scholastic in nature, and such education could not be of any benefit to the boy; That such training as could be given to the applicant could not be regarded as primary education within the meaning of that expression as used in Article 42 of the Constitution. The claim was successful in the High Court and upheld in the Supreme Court, holding that there had been a failure to provide for the education of the child and that the State was liable via the DES. Developments in Practice Within a year of the Supreme Court decision, the DoE introduced what it termed an automatic response to special educational needs and issued the two circulars which set out eligibility criteria for additional teaching and special needs assistance supports (Irish Reports, 1996:21). These new developments triggered a massive rate of application for

6 Policy, Legislation and Practice for Children with Special Needs in Ireland 141 services, and in turn, the provision of extra posts became a common feature in schools. The development also indicated the recognition by the DES that care needs to exist within the school setting. These became crucial in terms of the development of education services for students with disabilities. Unfortunately, the process was bedevilled by delays in the provision of supports in schools for children. More recently, the Courts have shown a willingness to intervene to vindicate the child s right to education in cases where the child is below compulsory school age and is not a student. In July 2004, the High Court ordered the DES to provide twenty-nine hours of home tuition per week for a pre-school boy, and the payment of 300 per month for consultant supervision of the home programme, pending the full hearing of the case on November 9, 2004 (Irish Independent, July 8 th 2004). Three days later, the DES sought and obtained a stay on the implementation of the order on the basis that the Minister s expert believed that more than twenty-three hours of home tuition would not be in the best interests of the child (Irish Times, July 24 th 2004). The twenty-three hours of home tuition is to be provided in the interim. The concept of a child who is a student and a child who is not a student is a central element in the Education for Persons with Special Educational Needs Act (2004), which is discussed below. The Education for Persons with Special Educational Needs Act (2004) The Education for Persons with Special Educational Needs Act (DES, 2004) is the most recent development in education legislation. It will bring major developments in practice concerning special education. Three developments are particularly relevant: the establishment of the National Council for Special Education, the assignment of functions to the Minister for Health and Children and to Health Boards and thirdly, the establishment of an Appeals Board. The Act acknowledges that persons with special educational needs have the same right to education as their peers without such needs. It aims to ensure that children with special educational needs will be enabled to leave school with the skills necessary to participate to the level of their ability in society, and to live independent lives. The Act is not confined to provisions for students and confers specific functions and duties to Health Boards in relation to a child who is not a student, that is a person less than eighteen years who is not attending a school or similar establishment. Another of the major changes to current practices is the establishment of the National Council for Special Education. Much of the work currently administered by the DES will be transferred to this body. The Council also is assigned functions such as a duty to plan and

7 142 co-ordinate the provision of education and support services to children with special educational needs in consultation with schools, Health Boards and such other persons as the Council considers appropriate (DES, 2004:Section 20 (1)). The Council will maintain records of persons receiving special educational and support services and will also record the schools and other places where such services are provided. The Act envisages that there will be co-ordination and consistency of approach between Health Boards and the Council and provides for the role of liaison officers to support this envisaged co-operation. In the event of a dispute between the Council and Health Boards, the Act provides for the referral of disputes to the Appeals Board for determination. As well as providing for changes at executive level, the Act also provides for additional duties at ministerial level. It achieves this objective by amending section 7 of the Education Act (DES, 1998) to allow the Minister for Education and Science, in carrying out duties in respect of the provision, planning and co-ordination of support services and following consultation with the Minister for Health and Children, to request the assistance of a relevant Health Board. A Health Board is required to comply with such a request. Another change in current practice is that the Act introduces an appeals procedure in relation to decisions about the education of persons with special educational needs and establishes an Appeals Board. Under the Act, several types of complaints can be brought to the Appeals Board and the Board will determine these within a specific time period. Parents, schools, Boards of Management, Health Boards and the Council can bring complaints to the board. In addition to the appeals mechanism, the Act also provides for mediation in certain cases. Conclusion The Irish people, in 1937, adopted the Constitution of Ireland. It promised free primary education to future generations. Since the 1990s, the courts have found on numerous occasions that that promise was not fulfilled. It remains to be seen whether the Education for Persons with Special Educational Needs Act (2004) will give practical effect to the right of children with special educational needs in the under six age group to an appropriate education and to support services. The current Child Care Regulations make no reference to children with special needs (DHC, 1998). They are being reviewed at present. It is to be hoped that the revision will address the important national issue of childcare provision for children with special needs. References Census (2002). Volume 2, Table 10, Persons in each Province, County and City (classified by single year of age and sex). Available from: [Accessed 10 th December 2004].

8 Policy, Legislation and Practice for Children with Special Needs in Ireland 143 Coolahan, J. (Ed.) (1998). Report of the National Forum for Early Childhood Education. Dublin: The Stationery Office. Department of Education (1965). Rules for National Schools under the Department of Education. Dublin: The Stationery Office. Department of Education (1993). Report of the Special Education Review Committee. Dublin: The Stationery Office. Department of Education and Science (1998). Education Act. Dublin: The Stationery Office. Department of Education and Science (1999a). Primary School Curriculum. Dublin: The Stationery Office. Department of Education and Science (1999b). Ready to Learn White Paper on Early Childhood Education. Dublin: The Stationery Office. Department of Education and Science (2000). Education (Welfare) Act. Dublin: The Stationery Office. Department of Education and Science (2004). The Education for Persons with Special Educational Needs Act. Dublin: The Stationery Office. Department of Education and Science (Forthcoming). Statistical Report Dublin: The Stationery Office. Department of Equality and Law Reform (1995). Report of the Commission on the Status of People with Disabilities. Dublin: The Stationery Office. Department of Health (1990). Needs and Abilities- The Report of the Review Group on Mental Handicap Services. Dublin: The Stationery Office. Department of Health (1991). The Child Care Act. Dublin: The Stationery Office. Department of Health and Children (1998). Child Care (Pre-School Services) Regulations 1996 and Child Care (Pre-School Services) (Amendment) Regulations 1997 and Explanatory Guide to Requirements and Procedures for Notification and Inspection. Dublin: The Stationery Office.

9 144 Department of Justice, Equality and Law Reform (1999). National Childcare Strategy - Report of the Partnership 2002 Expert Working Group on Childcare. Dublin: The Stationery Office. Department of Justice, Equality and Law Reform (2002). Quality Childcare and Lifelong Learning: Model framework for Education, Training and Development in the Early Childhood Care and Education Sector. Dublin: The Stationery Office. Educational Research Centre (1998). Early Start Preschool Programme Final Evaluation Report. Dublin: Educational Research Centre.