Colm Burke (Cork North Central, Fine Gael)
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I thank the Minister of State for taking this Topical Issue. I previously raised this issue over 12 months ago, I think. The response I got was that there would not be a move by the Department to treat home tutors as employees of the Department. Home tutors are paid directly by the Department and taxes are deducted by the Department when payment is made. In other words, home tutors have all the indications of being employees as opposed to subcontractors. The issue has changed over the past few months. There was a Supreme Court decision in a case involving Domino's Pizza concerning the treatment of delivery people. A decision by the High Court was reversed by the Court of Appeal. The Supreme Court then gave a decision stating that these workers should be treated as employees. It set out the criteria, including the following questions. First, "Does the contract involve the exchange of wage or other remuneration for work?". Second, "Has the worker agreed to provide their services to the employer personally?" and third, "If so, does the employer exercise sufficient control over the ... employee to render the agreement one that is capable of being an employment [contract]?". The Supreme Court then stated "If these three requirements are met the decision maker must then determine whether the terms of the contract between employer and worker interpreted in the light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence". Home tutors provide education when children, for one reason or another, are not able to fit into the school arrangement. We have a large number of home tutors, who provide a valuable service. The issue is that home tutors are in category S, from a tax perspective. Any contribution they make to a pension is not tax deductible. At the same time, they are not on a programme for a pension. It causes problems for them. It is interesting that the Revenue, following the Supreme Court decision, issued a statement that "any business which currently engages contractors, sub-contractors or other workers on a self-employment basis, (i.e. where that worker is not treated as an employee of the business for income tax purposes), should review the nature of any such arrangement(s)". The interesting line in the Revenue guidelines is "where that worker is not treated as an employee of the business for income tax purposes". Income tax for home tutors is deducted by the Department. I know the Department's argument is that these people are employed directly by the parent of the child and not the Department but the Department pays them, deducts tax and sets guidelines about what they can and cannot do. For instance, home tutors have difficulties getting unemployment benefit during the Christmas, Easter and summer periods, when they are not in employment. They are not entitled to take on additional home tutor work during those periods. The Department sets out clear restrictions and deducts tax, yet tutors do not have the benefits of being employees. They are at a huge disadvantage in every respect. The Supreme Court decision requires the Department to review the current practice as to how it will deal with home tutors.

Mary Butler (Waterford, Fianna Fail)
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I thank the Deputy on behalf of the Department of Education for the question and for giving me the opportunity to provide the House with an outline of the home tuition scheme, which is an important resource for a small number of children who require this particular support. The home tuition scheme is one of the many ways in which the Department of Education and the National Council for Special Education continue to support children with special educational needs. I stress that enabling students with additional needs to receive an education appropriate to their needs is an ongoing priority for the Government. It is a priority to ensure that all children have an appropriate school placement and that the necessary supports are provided to our schools to cater for the needs of children with special educational needs. In 2023, the Department of Education will spend more than €2.6 billion, or over 27%, of the Department's budget on providing additional teaching and care supports for children with special needs. This will allow the Department to further increase the number of teaching and special needs assistant posts in our schools. There will be an additional 686 teachers and a further 1,094 special needs assistants in our schools by the end of this calendar year. Further progress has been made in budget 2024, in which an additional €113 million has been provided, which will be dedicated to providing supports for children with special educational needs, allowing for a further 744 teachers and 1,216 special needs assistants to deliver up to 2,700 places for children with special educational needs. This means there will be more than 41,500 qualified and committed people in our schools focused wholly and exclusively on supporting children with special educational needs.

The Department's home tuition grant scheme provides funding towards the provision of a compensatory educational service for children who, for a number of specific reasons, are unable to attend school. By its nature, it is intended to be a short-term intervention. The scheme provides for early educational intervention for children with autism who meet the scheme's eligibility criteria, students with special educational needs seeking an educational placement in a recognised school, and students enrolled in schools who have a significant medical condition or school phobia and-or associated depression or anxiety, which has caused and is likely to continue to cause major disruption to their attendance in school.

In exceptional cases, the Department will consider home tuition applications on behalf of students with a diagnosis of school phobia or associated anxiety which has caused and is likely to continue to cause major disruption to their attendance at school. The exception will only apply when a continued absence from school is required to facilitate appropriate medical or therapeutic intervention with a view to the reintegration of the student in his or her school. The intention of the scheme is that home tuition is provided for short periods; it is not a long-term measure. There is an increased number of special schools and special classes available in recent years; it is intended this will mean fewer children requiring access to home tuition in future.

Given the nature of the scheme, home tutors are engaged by parents and guardians of the child who is to receive tuition and the tutor has no contractual relationship with the Department of Education. Tutors are paid through the Department's fortnightly payroll system and, in accordance with instructions from the Revenue Commissioners, payments under the scheme are subject to statutory deductions at source. In order to facilitate parents, the Department acts solely as payroll agent. The Department of Social Protection has also determined that home tutors are engaged under a contract for service and are therefore self-employed and subject to PRSI class S.

The matter raised by the Deputy is an important one and the Department of Education continues to keep all of these issues under review in light of any legal decisions or changes in legislation.

Colm Burke (Cork North Central, Fine Gael)
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I know this area is not under the Minister of State's remit. I fully understand that. However, we had the same problem with people working in RTÉ who were treated as self-employed. When that was reviewed, it turned out many of them had to be treated as employees. The issue has also changed because of the Supreme Court decision. It is like the people working for the pizza delivery company. It could technically be said those delivery people were employed by the people who wanted pizza delivered to their house rather than by the person producing the pizza. The Supreme Court has decided they are to be treated as employees.

Even if I do not resolve the issue of whether they are employees or subcontractors, the other issue concerns class S, which they come under for tax purposes. It is a huge disadvantage for them in relation to planning pension, in relation to other employment they may want to take on during the holiday periods and in relation to the fact they are not entitled to get any support when they are not working during the summer, Christmas and Easter periods. That needs to be reviewed. They provide a valuable service for children who have difficulties in attending school, and for their parents. Taking into account the Supreme Court decision, how do we continue to attract people into the area who can provide the service and deliver a good education to people who otherwise who drop out of the system?

Mary Butler (Waterford, Fianna Fail)
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I accept the thrust of the Deputy’s question. It probably does not only sit, as he said, with the Department of Education. It is an example of it. The Department of Social Protection has determined home tutors are engaged under a contract for service and are therefore self-employed and subject to PRSI class 7.

The Department of Education continues to keep all these issues under review in light of any legal decisions or changes in legislation. The Department will continue to work with education stakeholders on these issues.

I stress the majority of children are educated in mainstream settings along with their peers. Where it is in the best interests of the child, special schools and classes are provided. However, home tuition ensures, where a child cannot attend regular school placement, he or she continues to receive an education. It is a lifeline for such children and their parents.

I reassure the Deputy the Department will continue to support the NCSE and schools through provision of the necessary funding and capital investment to ensure all children are successful in accessing an education. I will bring the issues the Deputy raised to the Minister’s attention.