Dr. Niall Muldoon:

I will try to shorten my statement. I thank the committee for the invitation to appear before it. As members of the committee are aware, the Ombudsman for Children’s office is an independent statutory body, established under the Ombudsman for Children Act 2002, as amended. The rights and welfare of children with disabilities have been a strategic priority for my office since 2016 and we are committed to continue pursuing the progressive realisation of the rights of children with disabilities.

In October last year, we published a report called Unmet Needs, which sets out the challenges experienced by children who may have a disability and require an assessment of needs, AON. The report proposes actions that we believe should be taken to address these challenges in a child-centred, rights-based manner. Our Unmet Needs report raises serious concerns about ongoing violations of the rights of children with disabilities due to significant delays for children in accessing an assessment of need, despite the HSE’s legal obligation to commence this within three months of receipt of a child’s application.

As members of the committee know, in September 2004, when the Government launched the national disability strategy, it was envisaged this would lead to an equitable reconfiguration of disability services. The Disability Act 2005 and its counterpart, the Education for Persons with Special Education Needs Act 2004, were key elements of that strategy. The 2005 Act provides for an AON in order to determine the health services required by a person with a disability. The EPSEN Act provides for an assessment of special educational needs so that a child with such needs may be educated in an inclusive environment. While the 2005 Act has been commenced in full, sections 3 to 13 of the EPSEN Act have not been commenced, and that is why we are here today. In the absence of a procedure under the EPSEN Act, students who require such an assessment have been applying for an AON under the 2005 Act. This has placed further pressure on the 2005 Act mechanism, which is run by the HSE.

Furthermore, in our view, provisions in the 2005 Act concerning children are insufficiently rights-based or child-centred. Accordingly, we made a key recommendation in the Unmet Needs report that "an independent expert group should be established to review the 2005 Act, having regard to the EPSEN Act, and related legislation which impacts the provision and delivery of AONs and special educational needs assessments." We recently wrote to both the Minister for Children, Equality, Disability, Integration and Youth, Deputy Roderic O'Gorman, and the Minister of State, Deputy Anne Rabbitte, asking them to initiate a review of the Disability Act while having regard to the EPSEN Act. Therefore, I noted with interest the meeting of this committee last week, at which it was reported that the Minister of State at the Department of Education, Deputy Josepha Madigan, had indicated a desire to review the EPSEN Act and the Department of Education committed to doing that. This suggests that there could be an alignment that could at last create a better and more co-ordinated legal framework to support our children with disability from the cradle to the end of their education journey.

Earlier this month, my office published research called Mind the Gap, which we commissioned from NUI Galway to examine what obstacles in laws, policies and programmes the State places in front of children with disabilities. This research broadened and deepened our understanding of the barriers that children with disabilities in Ireland face when it comes to enjoying their rights. Unfortunately, the overarching conclusions reached are stark. Children with disabilities are not seen and they are overlooked in many child and disability-focused laws, policies and programmes. Those same children are not heard and they are not actively or effectively involved in consultations on many existing laws, policies and programmes affecting them. Children with disabilities are not counted because they are relatively invisible in data. If the State is to fulfil its duty to realise the rights of children with disabilities, it must see, hear and know these children.

Having set out the huge disadvantages and barriers that hamper the life of every child with disabilities, it is important to acknowledge that the impact of Covid-19 has been seriously and disproportionately negative for this group as well. We are here today to discuss the EPSEN Act and special needs education but it is vital to also be aware of many other issues that are live for children with disabilities and their families. With education, these issues include school places and planning for same, reduced timetables, suspensions and expulsions, expansion of the summer programme and school nurses in special schools. I thank the committee for its invitation and its time. I am happy to answer questions with the assistance of my colleague, Dr. Karen McAuley.