Education For Persons With Special Educational Needs Act 2004
Note:
It should be noted that the Education for Persons with Special Educational Needs Act 2004 has not yet come into force. However, some of the provisions of the Act will come into effect in July 2005.
S.53. -(2) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
Foreword
Education is an essential part of our development. It provides us with greater understanding of our world, equips us with skills, with knowledge and opportunities for action and shapes us as human beings. It is fundamental to our growth.
In the past, many persons with disabilities have not had adequate opportunities to fully participate in and benefit from education. This recognition has grown in recent years, and changes have been made, yet much remains to be done to afford equality of access to educational opportunity.
Since the National Disability Authority was established it has recognised the importance of education and has adopted it as one of its priorities. It has made detailed submissions to the Department of Education and Science, highlighting the needs of persons with a disability.
When the Education for Persons with Disabilities Bill was published in July 2003, the NDA made oral and written submissions on the draft legislation. The Bill was re-titled and enacted in July 2004 as the Education for Persons with Special Educational Needs Act.
This Act sets out how the State intends to make provision for the education of persons with special educational needs in future. It acknowledges that persons with special educational needs have the same right as their peers who do not have such needs, to participate in and benefit from education. It outlines the ways in which it is intended to give effect to the right of persons with special educational needs to participate in and benefit from education.
Some of the provisions of the Act are outlined in this brief document. It is intended to provide a general introduction for the reader about how provision will be made for the education of persons with special educational needs in future. It is to be hoped that the legislation will contribute greater benefits for students with special educational needs.
Angela Kerins
Chairperson
Introduction
The Education For Persons With Special Educational Needs Act 2004 was passed to ensure that persons with special educational needs can be educated where possible in a inclusive environment, that they can have the same rights to education as persons who do not have special educational needs and to ensure that such persons are equipped by the education system with the skills they need to participate in society and to live independent and fulfilled lives.
To assist in this regard, the Act places certain obligations on schools, school principals and health boards. The Act also establishes a National Council for Special Education (which has the power to appoint special educational needs organisers) to perform certain functions and also an Appeals Board to deal with appeals from the decisions of any of the bodies mentioned.
It is important to understand what is meant by the term special educational needs. _The Act itself says that the term means 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. The Act defines a child as a person of not more than 18 years.
Inclusive Education
Under this Act, every child who has special educational needs must be educated in an inclusive environment with children who do not have special educational needs. However, this will not be required if it would not be in the best interests of the child with special needs or if it would impair the effective provision of education for the children with whom the child is to be educated.
Duties of Schools
Inclusive Education:
The board of management of a school must ensure compliance with the requirements of the Act in relation to inclusive education.
Involvement of Parents:
The board of management must also ensure that parents of a child with special educational needs are informed of their childs needs and how those needs are being met.
The board must also ensure that parents are consulted in relation to significant decisions relating to their childs education and are invited to take part in making those decisions.
Co-Operation with the Council:
The board of management must co-operate with the National Council for Special Education and provide the council with any information that it reasonably requests to perform its duties. This information is to be provided within the time specified by the council in its request (not more than 1 month).
Communication within the School relating to Special Educational Needs:
The board of management must ensure that all relevant teachers or other staff members are aware of the special educational needs of students and of the importance of identifying children and students with special educational needs. The board must also make students aware of the needs of persons with disabilities.
Duties of Persons Other than Schools
Any person other than a school who provides education to persons with special educational needs and which receives public funding must provide the council with any information that it reasonably requests to perform its duties, within the time specified by the council in its request (not more than 1 month).
Duties of School Principals
The principal of a school must take all reasonable steps to meet the educational needs of a school student where:
(a) The parents of a child in the school inform the principal they are of the opinion that the child is not benefiting as much as would be expected from the education programme which is provided in the school (to children who do not have special needs).
Or
(b) The principal forms the opinion that the child is not benefiting as much as would be expected from the education programme which is provided in the school (to children who do not have special needs).
Where the principal has taken all reasonable steps, she/he may still believe that the child is not benefiting from the school’s education programme as much as would be expected. If the principal believes that this may be because the child has special educational needs, the principal, after discussing the matter with the childs parents, must arrange to have the student assessed.
The principal can delegate these functions to any teacher in the school as (s)he considers appropriate. The special educational needs organiser must give all reasonable advice and assistance to the principal and teachers of the school needed for the carrying out of their functions. The board of management, principal, teachers and other school staff members must give all reasonable assistance to the special educational needs organiser to execute his/her functions.
Assessment
The assessment must be started within a month of the principal forming the opinion that the child is still not benefiting from the school’s education programme and that this may be due to the child having special educational needs.
The assessment must be completed within 3 months of the principal forming this opinion.
The assessment is to be carried out in line with guidelines issued from time to time by the National Council for Special Education. If the principal feels that the arrangement of an assessment cannot reasonably be done by him/her, the principal must request the council to arrange the assessment.
If the council refuses to cause an assessment to be carried out, the parents of the child can appeal to the Appeals Board (see below). The Appeals Board may direct the council to arrange for an assessment to be carried out or dismiss the appeal. The Act does not provide for time limits regarding the making of this appeal.
Education Plan
If the assessment shows that the child has special educational needs, the principal must, within 1 month of receiving the assessment, have a plan prepared for the appropriate education of the child.
The principal must make sure that the parents of the child are consulted in relation to the preparation of the plan and must allow them to be involved in preparing the plan. The principal must also ensure that the school’s special needs organiser and any other person the principal thinks appropriate are consulted.
The principal must also ensure that any guidelines issued by the National Council for Special Education are followed in the preparation of the education plan, unless (with the consent of the school’s special needs organiser) there are good reasons for not following these guidelines.
When the education plan has been prepared, the principal must immediately give written notice of this to the parents and the special needs organiser along with a copy of the plan.
The principal must request the National Council for Special Education to prepare an education plan in respect of a child in two situations:
(a) When the childs special educational needs, as shown by the assessment, are such _that preparing an education plan at school level will not meet the childs special educational needs
or
(b) When an education plan already prepared is not meeting the needs of the child and the taking of any additional steps by a special educational needs organiser would not be likely to meet those needs.
An education plan prepared by the National Council for Special Education will supercede any plan which the school principal has had prepared.
If the National Council for Special Education refuses to prepare a report, the parents of the child or the school principal can appeal to the Appeals Board. The Appeals Board may direct the council to prepare an education plan or dismiss the appeal. The Act does not provide for time limits regarding the making of this appeal.
Appealling a refusal of the Council to the Appeals Board
If the council refuses to arrange an assessment of a child or to prepare an education plan, the parents of the child or the school principal may appeal to the Appeals Board.
The Appeals Board has the power to direct the council to arrange the preparation of an assessment or of an education plan. In this case, the council must comply with the direction of the Appeals Board.
The Appeals Board may dismiss the appeal of the parents or principal.
Assessment of a Child by or on behalf of a Health Board or the Council
Where the relevant health board is of the opinion that a child, who is not a student, may have special educational needs, the health board must have an assessment of the child carried out.
Where the council is of the opinion that a child, who is a student, may have special educational needs, the council must have an assessment of the child carried out.
Requests for Assessment from the Parents of a Child:
The health board or the council must have the assessment started within 1 month of receiving a request from the parents and the assessment must be completed without unreasonable delay.
The health board or the council may refuse the request from the parents if it is of the opinion that there are insufficient grounds for believing that the child has special educational needs or if the child has already been assessed in the previous 12 months.
Contents of Assessment
The assessment must include an evaluation and statement of the childs disability and of the services the child will need to take part in and benefit from education and to develop his/her potential.
Appeals by Parents if the Health Board or the Council refuses their request for an Assessment:
Parents whose request for an assessment has been refused may appeal to the Appeals Board. The Appeals Board must make a decision on the appeal within 6 weeks of receiving the appeal.
The Appeals Board may direct the health board or the council to have an assessment of the child carried out, or it may refuse the appeal.
Qualifications of Assessors:
The assessment must be carried out with the assistance of suitably qualified people. _The health board or the council may select from the following:
(a) a psychologist
(b) a medical practitioner
(c) the principal of the childs school or a teacher from that school selected by _the principal
(d) A suitably qualified social worker
(e) a suitably qualified therapist
The parents of the child are entitled to reasonable involvement in the assessment.
Parental Consent to Assessment:
Except where the parents have requested the assessment to be carried out, the health board or the council must inform the parents in writing if it intends to carry out an assessment. This notice must include the reasons for the assessment.
The assessment must not be carried out without the written consent of the parents.
If the parents do not consent to the assessment, the health board or the council may apply to the Circuit Court. The Circuit Court may order that the consent of the parents is not necessary if it thinks this is in the best interests of the child.
Parents’ Access to Assessment Documentation:
The assessment statement must be made available to the childs parents immediately when it has been prepared.
The health board or the council may give information from the assessment to people involved in the education of the child who need to be informed of the childs educational needs. The health board or the council must inform the parents as soon as possible _when it has given this information and the identity of the people to whom it has given _the information.
Appealling an Assessment:
The parents of a child assessed can appeal to the Appeals Board on the basis that the assessment was not carried out in line with the proper standards. These are standards determined after consultation with the Minister for Education and Science by a body designated by regulations made by the Minister for Health and Children.
The Appeals Board must hear the appeal and make a decision within 2 months of the appeal being made.
The Appeals Board may allow the appeal and
(a) make a direction to the school principal, the health board or the council to carry out a fresh assessment; or
(b) make any other direction that it thinks is appropriate.
The Appeals Board may also refuse the appeal.
Providing Services
Providing Services to Non-Students:
If a child is not a student, the health board must provide the services identified in the assessment as necessary to enable the child to take part in and benefit from education. This must be done as soon as practicable after the assessment is completed.
If the health board believes that certain services could be better provided by the council, it must inform the council of this in writing and the council must then provide the services.
Providing Services to Students:
If a child is a student, the council must ensure that the services identified in the education plan as necessary to enable the child to take part in and benefit from education are provided. This must be done as soon as practicable after the education plan is completed.
If the council believes that certain services could be better provided by the health board, _it must inform the health board of this in writing and the health board must then provide _the services.
Disputes between the health board and the council as to provision of services:
Disputes as to whether services can be better provided by the health board or the _council must be referred to the Appeals Board, which can make a binding determination on the matter.
Preparation of an Education Plan
Direction from the Council for the Preparation of an Education Plan:
Where the council is informed by the health board or the school principal that a child has special educational needs, the council must direct the relevant special needs organiser to prepare an education plan (unless a plan has already been prepared or started).
Preparation of the plan must begin within 1 month from the direction of the council and must be completed within 2 months of being started.
Team to Advise Special Educational Needs Organiser on Preparation of an Education Plan:
The special educational needs organiser must assemble a team to provide advice on the preparation of the education plan.
The team must include:
(a) The parents of the child (but only if they consent to being members of the team)
(b) The principal of the school attended by the child (or which it is proposed the child will attend) or a teacher in the school nominated by the principal
The team may include:
(a) The child, where appropriate
(b) An appropriately qualified expert in psychology
(c) Any other person considered appropriate nominated by the parents or the special educational needs organiser. This person must hold a qualification relating to the education of children with special needs which is recognised by the council.
When preparing the education plan, the team must consider any needs, other than educational needs, of the child which are mentioned in the assessment and the team must ensure that the education plan is compatible with providing for those needs.
Contents of an Education Plan
The education plan must be in line with the requirements specified from time to time by the council and must include:
(a) The type and extent of the childs abilities, skills and talents
(b) The type and extent of the childs special educational needs and how these affect his/her educational development
(c) The level of the childs current educational performance
(d) The childs special educational needs
(e) The special education and related support services to be provided to the child to enable him/her to benefit from education and participate in the life of the school
(f) Where appropriate, the special education and related support services to be provided to the child to enable him/her to make the transition from pre-school education to primary school education
(g) Where appropriate, the special education and related support services to be provided to the child to enable him/her to make the transition from primary school education to post-primary school education
(h) The goals which the child is to achieve over a period of not more than 12 months
The principal of the school concerned must implement the education plan.
Transfer of Child Between Schools
If it is planned to transfer a child (in respect of whom an education plan has been prepared) from one school to another, the principal of the childs current school must contact the principal of the other school before the transfer takes place.
The Principal of the Childs Existing School Must:
(a) ensure that the principal of the other school is aware of the contents of the education plan, and
(b) assist the principal of the other school to change the education plan as necessary to accommodate the childs special educational needs having regard to the operation of that school (the principal of the other school is authorised by the Act to make these changes to the plan).
Proposed Changes to an Education Plan:
Where it is proposed to change a childs education plan, the principal of the school that the child is transferring to must inform the parents of this and the parents may request that the principal discuss the proposed changes with the special educational needs organiser.
When consulted by that principal, the special educational needs organiser may get the assistance of some or all members of the team mentioned above to review the content and implementation of the plan. In certain cases, others may be consulted. The organiser may then amend the plan.
Designating a School
The council has the power (whether requested by a childs parents or not) to designate a school for a child with special educational needs to attend. Once designated, that school must admit the child as a student when directed to do so by the council.
In deciding to designate a school, the council must consider the needs of the child, the wishes of the parents and the capacity of the proposed school. The council may make a recommendation to the Minister for extra resources to be given to the school and can take this into consideration when considering the school’s capacity.
The designated school can appeal to the Appeals Board against the decision to designate the school and/or against the recommendation to the Minister. The Appeals Board can cancel the designation and can also cancel or vary the recommendation to the Minister. The Appeals Board may also dismiss the appeal.
The parents of a child (in respect of whom an education plan has been prepared) may also appeal to the Appeals Board if they request the council to make a designation and the council does not do so or the council does not designate the school the parents specified. The Appeals Board can require the council to make a designation or to designate a particular school. If the appeal concerns the designation of a particular school, the board of management of the school can have input at the appeal. The Appeals Board may also dismiss the appeal.
Appeals relating to designation must be conducted and determined within 2 months of being made.
Review of an Education Plan
At least once a year, the principal of the school must review the operation of each education plan for children in the school to establish whether the child concerned has received the services and met the goals specified in the education plan.
The principal must report to the parents and the special educational needs organiser on the review of the education plan. The report should include recommendations for changes to the plan to assist the child in reaching goals which he/she is not reaching.
If, arising from the report, the special educational needs organiser feels that the goals in the education plan have not been met, she/he may get the assistance of some or all members of the team mentioned above to review the content and implementation of the plan. In certain cases, others may be consulted. The organiser may then amend the plan.
Parents’ Request for a Plan to be Reviewed:
Where parents believe that goals set in the education plan have not been met, and the plan has not be reviewed in the last 6 months, the parents may request the principal to review the plan. The principal is to do this if she/he feels it to be appropriate. If the principal believes it is not appropriate to review the plan, she/he must notify the parents in writing, including reasons, within 2 weeks of their request.
Parents’ Appeal to Appeals Board:
(1) Parents may appeal the principal’s decision within 1 month of receiving the written notice mentioned above. The Appeals Board must hear and decide on the appeal within 1 month of receiving it and may direct the principal to review the plan, or it may dismiss the appeal.
(2) Parents may appeal to the Appeals Board against any statement or description relating to their child or their childs special educational needs in the education plan (made by the school principal or the council) if they feel that the statement or description is incorrect or inadequate to meet their childs special educational needs.
(3) Parents may also appeal to the Appeals Board if the school or health board has failed to implement any part of the education plan.
In the case of (2) and (3), the Appeals Board must hear and decide on within 2 months of receiving it and may order that the school principal or the council change any part of the education plan, give any direction to the principal, the council or the health board relating to the childs education as it considers appropriate.
Planning for Future Education Needs
Principal or Special Educational Needs Organiser:
When preparing or reviewing an education plan, the principal or special educational needs organiser must (when the child reaches an age the principal or organiser thinks appropriate) consider the provision which will need to be made to assist the child in continuing his/her education or training on becoming an adult.
The Council:
When preparing or reviewing an education plan of a child who will reach the age of 18 within 12 months, the council must arrange an assessment of:
(a) the extent to which goals set out in any previous education plan(s) met the special educational needs of the child; and
(b) the reasons for any failure to meet those goals and the effect that any such failure had on the childs development
and the education plan must include steps to address any effect on the childs development.
Duties of Health Boards
The Act makes provision for the council to request the assistance of a health board in preparing or implementing an education plan or in the general performance of its duties. The health board must comply with this request unless it considers its assistance is not required, would interfere with the performance of its own functions or would be impossible having regard to its resources.
The council can appeal the refusal of the health board to the Appeals Board which can order the health board to give the assistance requested.
A health board must comply with a request for assistance from the Minister for Education and Science.
Duty of the Minister for Education and Science and the Minister for Health and Children
The Minister for Education and Science and the Minister for Health and Children must, with the consent of the Minister for Finance provide money and other resources for the preparation and implementation of education plans in respect of children with special educational needs.
National Council for Special Education
The Act establishes the National Council for Special Education and sets out its functions. Its functions centre around:
n Providing information to parents and others relating to the best practice concerning the education of children with special educational needs.
n Providing information to parents on their rights and the rights of their children.
n Consulting schools, health boards and others to organise the support and integration of students with special educational needs.
n Ensuring the progress of students with special educational needs is monitored and reviewed at regular intervals.
n Reviewing the resources required to provide education for children with special educational needs.
n Ensuring appropriate education is available in respect of each type of disability.
n Reviewing the provision made for adults with disabilities to take part in higher education, adult and continuing education, rehabilitation and training and to make reports on its reviews, including recommendations for improvements.
n Advising all relevant educational institutions on the best practice concerning the education of adults with disabilities.
n Consulting appropriate voluntary bodies to ensure that their knowledge and expertise can be of benefit to the council’s policy development.
The council must publish an annual report on its activities and proceedings.
The Act sets out the rules regarding membership of the council and its internal workings.
Special Education Appeals Board
The Act establishes the Special Education Appeals Board (“the Appeals Board”) to hear and determine appeals under the Act.
The Appeals Board may determine its own procedures with the consent of the Minister for Education and Science. These procedures should ensure that:
(a) the parties to the appeal are assisted to reach agreement by way of mediation where the Appeals Board believes that agreement is practicable in the circumstances
(b) hearings are conducted with the minimum formality while ensuring both sides receive a fair hearing
(c) the Appeals Board performs its functions in line with policies set down from time to time by the Minister for Education and Science, the Minister for Health and Children or the Minister for Finance.
The Appeals Board shall be independent in the exercise of its functions.
The Appeals Board shall consist of a chairperson and a certain number of ordinary members (the number to be determined by the Minister for Education and Science). Persons are to be appointed to the board by the Minister for Education and Science and these persons should have a special interest in or knowledge of education, in particular the education of persons with special educational needs. The tenure in office of the chairperson and members of the board shall be determined by the Minister.
The Appeals Board (with the agreement of the Minister for Finance) can appoint as many employees as it considers necessary on such terms and conditions as it determines.
The chairperson and members of the board may resign by letter addressed to the Minister or they may be removed by the Minister.
The chairperson and members of the board may be paid an allowance for expenses _as the Minister for Education and Science may decide (with the consent of the Minister for Finance).
The Appeals Board may sit in divisions when hearing appeals. This means that the board can split into smaller groups to hear more appeals.
Mediation
The Minister for Education and Science may make regulations enabling certain disputes to go to mediation. These disputes are:
(a) when a person with special educational needs or their parents make(s) a complaint to the Minister that the special educational needs of the person are not being met; or
(b) when a person with special educational needs or their parents propose(s) to bring or has/have brought court proceedings for the failure of the Minister or the State to meet the special educational needs of the person.
Further information:
The full text of the Education for Persons with Special Education Needs Act 2004 is available on www.oireachtas.ie
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