Oireachtas Joint and Select Committees
Wednesday, 4 December 2013
Joint Oireachtas Committee on Education and Social Protection
General Scheme of Education (Admission to Schools) Bill 2013: Discussion
1:10 pm
Joanna Tuffy (Dublin Mid West, Labour)
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By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the joint committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against a person or an entity by name or in such a way as to make him, her or it identifiable. I advise that the opening statements submitted to the committee will be published on its website after the meeting. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.
This hearing on a draft general scheme of the Education (Admission to Schools) Bill 2013 follows its publication. The Bill will apply to all 4,000 primary and post-primary schools and the proposed regulations aim to underpin a fair, consistent and transparent enrolment process that precludes school places from being allocated on the basis of waiting lists and prevents schools from seeking deposits or payments as part of the admission process. The draft general scheme and the draft regulations were referred to the committee for consideration and we undertook a process of general consultation on the general scheme which resulted in a large number of submissions that now are under consideration. Overall, approximately 50 submissions were received. The hearings give groups an opportunity to present the key points of their submissions to the committee. In accordance with the notice issued seeking submissions, the criteria used were that those people who had sought to make a presentation were invited to attend and those who had not were not.
This is the first of three hearings. I welcome from the Department of Education and Skills Mr. Martin Hanevy, assistant secretary, and Mr. Hubert Loftus, principal officer; from the National Parents Council Ms Áine Lynch, chief executive officer; from the National Association of Boards of Management in Special Education Ms Breda Corr, general secretary; from Education and Training Boards Ireland Mr. Evan Buckley, education officer; from the Church of Ireland Board of Education Dr. Ken Fennelly; from the National Council for Special Education Ms Teresa Griffin, chief executive officer; from the INTO Ms Deirdre O'Connor, a senior official; and from the Irish Traveller Movement Ms Brigid Quilligan, director. The format is that each group will have an opportunity to make a presentation, with only one speaker per group. The presentation will strictly be for no more than five minutes to allow time for questions from the committee. I will begin with the Department of Education and Skills and invite Mr. Hanevy to make his opening statement.
Mr. Martin Hanevy:
I thank the Chairman. As she has pointed out, the draft general scheme of the Bill was submitted to the joint committee for its consideration. This followed from an earlier public consultation process held in 2011. In forwarding the general scheme the Minister also provided draft regulations on the content of admission policies and the proposed admission process. While it is not generally the case that draft regulations are provided alongside the general scheme of a Bill, the Minister was anxious to do so in this matter, which clearly was of public interest, to facilitate a comprehensive discussion on the full range of measures to be provided either in the Bill or regulations. The draft framework proposes a new more parent-friendly, equitable and consistent approach to how school enrolment policy should operate in primary and post-primary schools. Its purpose is to improve access to schools for all pupils and ensure there is consistency, fairness and transparency in the admission policies of all schools and the service they provide for parents. The framework constitutes a significant public service reform aimed at substantially improving the experience between the public and schools in respect of student admission. Transforming public services and ensuring the citizen is at the heart of how public services operate is an important objective of the Government.
The Department acknowledges that schools will have some concerns about how the enrolment framework will affect them individually. The draft framework seeks to strike an appropriate balance between school autonomy, on the one hand, and the interests of parents in the education system, on the other. The Department desires the enrolment process to continue to transact at local school level with a high level of local discretion but within a framework that ensures fairness, transparency and good standards. Under this framework, external intervention in enrolment will be very much a last resort and will be confined to those most serious cases in which a school does not operate its enrolment in the fair, consistent and transparent manner set out in the draft framework.
For the reported 80% of schools that enrol all pupils, that is, that do not have an oversubscription problem, the impact of the framework will be relatively marginal. For the remaining 20% of schools that are oversubscribed, the framework specifies a small number of oversubscription criteria that will not be permissible. Otherwise, schools have discretion in how they prioritise applicants for enrolment, provided also that it is lawful from an equality perspective.
From the perspective of the parent, the framework makes clear that the enrolment policy will be available to all parents and will be explicit in affirming that the school will not discriminate on grounds of disability, special needs, sexual orientation, family status, membership of the Traveller community, race or civil status. Second, there will be a common national earliest date for the commencement of enrolment across the school system and, third, subject to limited exceptions, the default position will be that if a school has capacity, it must enrol all applicants. Other than recognised fee-charging schools, parents will not be charged any booking deposits, fees or other payments as a condition of initial enrolment or for continued enrolment. Parents will see in advance from the enrolment policy the oversubscription criteria the school will use if demand exceeds supply. Schools will have discretion on what oversubscription criteria they use, provided they are not one of the listed criteria that are not permissible. In the case of a school that was oversubscribed in the previous year or which expects to be in the coming year, parents will be able to see from the information provided by the school which categories of applicants were successful in the previous year’s enrolment process. This will be a useful and early indicator to the parent on the chances of being allocated a school place. If an applicant is unsuccessful in getting a school place, then the parent will be given the reasons the applicant failed to meet the enrolment criteria and this transparency should bring clarity for a parent and help to reduce appeals. An unsuccessful applicant will have access to a local appeal process to the board of management, which will be provided for in regulations. This proposal to have a strengthened local appeal process recognises the limitations of the current section 29 appeal process.
The vast majority of schools can and do enrol all applicants. However, where demand exceeds supply for a school, it is inevitable that some applicants will not be able to access their school of choice. Access to school of choice in such circumstances comes down simply to supply and demand. The experience is that in situations where demand exceeds supply, section 29 appeals are generally futile, as the school refused enrolment simply because it did not have enough places. The section 29 process has a significant flaw, as it makes no distinction between not getting enrolled in a school of choice and not getting enrolled in any school in the area in question. This framework takes enrolment out of the section 29 appeals process and proposes alternative remedies.
Under the new framework, an unsuccessful applicant must be given clear reasons as to the reason the applicant is not being allocated a school place. If the unsuccessful applicant considers that his or her application was incorrectly decided upon under the oversubscription criteria the school must publish, then an appeal may be made to the board of management. Essentially, such an appeal will boil down to whether the school correctly assessed the application under the oversubscription criteria. It is not a forum to submit new information and will not require any oral hearings.
1:20 pm
Joanna Tuffy (Dublin Mid West, Labour)
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I ask Mr. Hanevy to wrap up, as his five minutes are up. Perhaps he can summarise the rest of his statement.
Joanna Tuffy (Dublin Mid West, Labour)
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Yes, we can come back with any questions.
I invite Ms Áine Lynch, of the National Parents Council, to make her opening statement.
Ms Áine Lynch:
While the National Parents Council, NPC, welcomes the draft regulations, I will make some comments on the different heads. On head 3, the requirement that an admission policy will state the school will not discriminate in admission, the NPC welcomes the explicit statement referred to in this provision and believes this will ensure that all parents and perspective students are aware of the school's commitment in this area. It is important that in issues such as discrimination, presumption is not made as to what may be implied or known, it is essential that the policy is stated in detail, as proposed. Under head 4, the amendment of section 33 to set out the powers of the Minister to make regulations regarding the admission of students to schools, the NPC again welcomes the clarity that head 4 brings for regulation on admission to a school. In particular, we support the requirement of the board to consult with the patron, parents and others before approving an admission policy, the requirement that an admission policy includes the school’s arrangements for those pupils who do not wish to attend religious instruction, the requirement that an admission policy includes a declaration that no fees will be charged, selection criteria that will be permissible and non-permissible and the prescription of the format and content of the application form. However, the NPC has concerns regarding the requirement that an admission policy includes the school’s policy regarding the admission and participation of pupils with disabilities or special educational needs. The admission policy regarding pupils with disabilities or special educational needs is already adequately dealt with under head 3. While the NPC fully supports the requirement for a school to have a policy regarding the participation of pupils with a disability or a special educational need, we do not believe this should form part of the admissions policy, as this refers to issues following admission and may lead to qualifying or limiting the school's affirmation statement under head 3.
The NPC also has concerns regarding the provision in head 4 that states:
Prescribe that the admission policy of a school shall provide for an offer of enrolment to be made to all students seeking admission save... where An Garda Síochána or the Health Service Executive has provided in writing to the school its opinion that the admission of the student could have a seriously detrimental effect on the safety of other students and or staff of the school.The implication for children and families could be significant under this provision. The NPC believes that if a provision such as this is required, strict and specific regulation must be developed and this provision could not take effect until such a time as such regulation was in place.
As the next three heads are inter-related, I will deal with them together. I refer to head 5 on the repeal of section 29, head 6 on the function of a principal to implement a school’s admission policy and head 7 on appeals to the board of management against refusals to enrol. The NPC does not support the inclusion of head 5, based solely on the inclusion of heads 6 and 7. The NPC does support an appeals process at local level in the first instance and believes that with the improvements to the system the proposed new legislation will bring, the requirement for appeals should significantly reduce. The NPC welcomes the provision that the appeals process at local school level will be prescribed by the Minister following consultation, which will include national associations of parents. The NPC believes these procedures must be developed as a matter of urgency if head 7 is implemented as set out.
The NPC is concerned that were there to be any delay in the development of this procedure, a similar situation would arise as has happened with the current section 28 of the Education Act. Where no procedures are prescribed by the Minister in consultation, then other procedures may be drawn up in a non-consultative process to address the void, as has happened in schools regarding parental complaints. The NPC does not agree, however, that the decision made by the board under head 7 should be final. While the NPC recognises it is neither practical nor provides the best mechanism for appeal to address all issues to the Secretary General of the Department, we believe there must be an independent appeal process for the possibly small amount of cases that cannot be dealt with adequately either by the principal of the school in implementing a complaint admissions policy or the appeal process at the local school level. The NPC does not necessarily disagree with the repeal of section 29 as proposed in head 5 but this must only be done if an alternative independent appeal system is already in place. The NPC suggests the appeals committee proposed in head 9 also has a remit to deal with complaints from parents regarding refusal of school enrolment, only to be accessed if the parent has completed the appeals process at local school level and remains dissatisfied that the school admissions procedure complies with the statutory regulation or that it was applied correctly in his or her child’s instance.
The NPC welcomes head 9 on the power of the National Education Welfare Board, NEWB, and the National Council for Special Education, NCSE, to designate a school and associated appeal mechanism. We believe this head gives a reassurance to parents and children regarding a school place. The NPC welcomes the provision under head 9 that the council shall have regard to the educational needs of the child concerned and the wishes of the child’s parents. However, the NPC believes the views of the child should also be included in this section. The NPC has some concern relating to the insertion that the council shall have regard for the capacity of the school or centre for education, as the case may be, to accommodate the child and to meet his or her educational needs. This appears to be conflict with principle 1 of the NCSE’s policy advice paper to the Minister, Supporting Students with Special Educational Needs in Schools., which stated: “All children, irrespective of special educational need, are welcome and able to enrol in their local schools.” The NPC believes the provision under head 9(4), should state:
In making a designation under section (3), the NEWB shall have regard to the educational needs of the child concerned, availability of places in the schools and centres for education in the locality and the placement that in its view is in the best interests of the child, the wishes of the parents, and the views of the child concerned.
Joanna Tuffy (Dublin Mid West, Labour)
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Does that conclude the statement?
Joanna Tuffy (Dublin Mid West, Labour)
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Perhaps Ms Lynch can revert to it later. I wish to allow enough time for questions and urge people to keep within the five minutes allocated because members do not need the entire presentation again, just the summary. It is important that this is what takes place.
I now invite Ms Breda Corr of the National Association of Boards of Management in Special Education to make her opening statement.
Ms Breda Corr:
While I have to hand a long presentation, I will not go into it now but will simply state that although we welcome many of the suggested changes, we are deeply concerned by the manner in which it does not take into account many of the necessary practices and requirements of boards catering for children with special educational needs. Our statement has approximately 14 points and I will go through them rapidly. On the statement of non-discrimination and special schools accepting only certain types of pupils, the NCSE recommends that special schools and units should cater for pupils with particular types of need.
In order to maximise resources, that should continue to be allowed. However, we recognise that regulation 24 might be a mitigating factor in this regard but only in respect of special schools and units. It needs to be expanded to cover mainstream schools with children with special educational needs.
There is a further difficulty with regulation 22 in so far as it refers to the assessment of students. We can only presume this regulation applies where the test is carried out by the school in the absence of an independent psychologist's report. Special schools and units must rely on the latter as part of their admissions process.
We have questions about the role of the patron. Many of our patron bodies are outside the denominational sector and many admissions policies largely depend on the focus of the special need.
The position on transfer policies is not clear. Clarity is needed on what is required of the policies that do not relate to the intake group.
Another question that arises is whether the NCSE and NEWB must respect the transfer and admission policies of a school on which they propose to impose a child. If they were permitted to transfer students into a school in circumstances where the criteria laid down in the policies were not met, it would be unjust to all applicants who are refused places due to oversubscription, or otherwise.
The draft scheme is an opportunity for the Oireachtas to legislate for the increasingly common question as to how to deal with a student whose special needs now exceed the ability of the school to cater for him.
We have questions on catchment areas, because this issue applies to special schools and units. The timeframe for accepting admissions to special schools and units is intertwined with the NCSE timeframe for the allocation of resources. We strongly advocate that provision for these interlinked processes be required in admissions policies under the draft head.
It is of great concern to our members that there is confusion over the assessments of pupils' needs and the engagement with parents as part of the admissions process. Many special schools and units use interviews as an integral part of the admissions process to ensure that the child would benefit from the specific services. We, too, are alarmed by the repeal of section 29 of the Education Act. If the Minister introduced a more transparent, coherent model for the existing process, it could increase certainty for schools and parents and reduce costs and confusion. I alluded to the only two ways in which people may make an appeal.
With regard to the expanded role of the principal, we are concerned because some schools require expertise in educational, medical and psychological fields that necessitates the obtaining of external advice during the process. While the board retains the final decision, many schools use advisory panels or sub-committees to assist in the process of ranking applications. Obviously, the principal could no longer be involved in the sub-committee.
My next few points are quite important. We view the proposed NEWB-NCSE powers to require a school to take a pupil in as an inappropriate stripping of a board of management’s authority and power to run its school. While the NCSE must take account of the capacity of the school to accommodate the child, the scheme does not give any further guidance on this decision-making process. The NCSE could consider a school’s capacity and decide that the need of the child to enter the school outweighs the needs of the school to cater for its existing pupils. It should be noted that the NCSE does not appear to have any power to take into account the impact of such forced enrolment on other children in the school.
On the NCSE's powers to recommend that additional resources be made available to the school, it may direct a school to take a child but the additional resources might never become available.
The powers of the Garda and HSE are problematic and unworkable in practice.
We note that the role of the SENO in school admissions requires statutory clarification, both in the current regime and particularly in light of the changes in the draft scheme. Given the proposed enlarged power of the NCSE, the role of the SENO in admissions needs very clear definition. The scheme needs to state explicitly what the actual role of a SENO will be in the admissions process and the extent to which schools can maintain their autonomy in applying their admissions policy in the face of a particular SENO's recommendation.
With regard to the development of joint enrolment, we suggest that the drafting of this legislation represents an opportunity to clearly define the process of joint enrolment, whether in a mainstream and special school or in two different special schools. We strongly recommend that legal guidance be set down in determining practical issues, such as where the capitation grant should go and how it should be split and how and where the child should be formally enrolled. Joint enrolment is of great assistance to many children in transitioning out of special schools and can be an effective method of fulfilling the mainstreaming objective in the EPSEN Act.
We thank the members for giving us the opportunity to make this presentation and demonstrate the complications and complexities of the proposed legislation in the context of special education.
1:30 pm
Joanna Tuffy (Dublin Mid West, Labour)
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I thank Ms Corr. I invite Mr. Evan Buckley from Education and Training Boards Ireland to make his presentation.
Mr. Evan Buckley:
I wish to refer to a number of heads and summarise our submission. Head 4 broadens the admission arrangement to include centres of education. We welcome that as it will include Youthreach, prisons and some VTOS centres. It is a good idea. With regard to the assessment of students' academic or other abilities, there may be some circumstances where it is worthy of consideration, in particular regarding those who might apply to attend all-Irish schools or where pupils might require certain subjects they studied in third year when transferring to fifth year.
Head 5 removes the capacity to appeal a refusal to enrol to the Secretary General. It leaves the decision with the principal and the appeal with the board of management. We are concerned that a number of such decision could be the subject of judicial review or litigation. The financial capacity of a board of management to defend such cases is an issue for us.
Under head 7, it is stated the appeal decision of a board of management is final. That is a very stark statement. It does not reflect ETB structures, whereby the ETB school committee decision must be ratified by the ETB committee itself. We want this to be examined so the ETB structures are reflected in the requirements. There are a number of possible solutions to that issue.
Head 8 relates to the right of the NEWB and NCSE to designate a school. This is a big change to the autonomy of the current schools. The legislation should address this to ensure decisions of the NEWB and NCSE are open, transparent and fair. It should require a reporting mechanism to be in place and that all publicly funded schools be given equal consideration. The legislation speaks a lot to the rights of the child designated to a particular school. It also needs to refer to the rights of existing pupils. They must be considered, particularly where the appointment of an additional pupil might have an impact on the resources available to existing pupils. The appeal criterion applies only where the decision is unreasonable. This is very undefined and unclear. The criteria should be more defined and they might well refer to a significant negative impact on those already attending a school.
Head 10 allows for an appeal of the NEWB decision, but the person to take that decision will be designated by the board itself. There is a need for an appeal panel, agreed with the board and the others partners from which it selects persons to hear appeals.
Head 14 repeals section 19 of the Education (Welfare) Act 2000. It is the section that allows a school to refuse to enrol a pupil subject to certain conditions in its admissions process. We are concerned that if the section were repealed, the statutory power to refuse admission at all by a school or an ETB would be removed.
There are three specific issues that relate to PLC colleges and PLC courses, namely, fees, interviews and specific entry requirements. Section 23 of the relevant legislation states there should be no fees or charges in the future. At present, circular 13/2011 allows for certain charges, including non-refundable deposits.
PLC, post-leaving certificate, courses routinely collect insurance, equipment, certification and membership costs in advance of admission. The fees also include the €200 Government charge. These fees need to be addressed in this legislation.
It is also essential to set basic entry requirements with specific regard to the type of course on offer. It is imperative to interview those participants who indicate they have a learning difficulty for us to expedite disability supports and identify risks. For example, those seeking entry to a journalism course must have a basic leaving certificate standard of English. These issues concerning the PLC need to be addressed to meet the needs of the ETB, education and training boards, sector.
1:40 pm
Joanna Tuffy (Dublin Mid West, Labour)
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I call Dr. Ken Fennelly, General Synod Board of Education.
Dr. Ken Fennelly:
I represent the Church of Ireland board of education. The board has some specific concerns about some of the proposals contained in this Bill. My colleagues present from the other management bodies will no doubt outline issues of common concern. I will endeavour to do so from the perspective of the Protestant religious minority community.
In reflecting on this draft scheme for school admissions, the Church of Ireland board of education considered several proposals to be of a specific concern. These are rooted in a consciousness of the responsibility on schools and school patrons to ensure the specific religious ethos of Church of Ireland schools is preserved and maintained. This is a responsibility to the church community generally, but is a specific responsibility to parents who choose a school for its specific ethos. A respect for the role and responsibilities of both the board of management and the school patron on the part of the State is, therefore, of vital importance. In that connection, I draw members' attention to head 4 where it is proposed to insert a new section 33. At this point, the proposals move from the making of regulations to prescribe the format of school admissions policies to prescribing the content of school admissions policies. It is the general view of the Church of Ireland board of education that at this point the draft Bill is moving into overly prescriptive and perhaps interventionist territory. Under the Education Act 1998, it is the duty of the board of management to manage the school on behalf of the patron. It strikes us as incongruous that the Minister would seek to be the ninth member of the board of management and determine the content of the schools admissions policy, as distinct from its format.
The committee will appreciate that this role for the Minister in regard to the content of the admissions policy will cause boards of management to question their autonomy in running the school on behalf of the patron. Clearly in a school which is under the patronage of a religious body, the appropriateness of the Minister seeking such powers, even if they are only to be used as a last resort, is open to question in our view. The committee might wish to consider how this proposal sits with Article 44 of the Constitution which states that religious bodies have the right to manage their own affairs.
Church of Ireland primary schools teach the Follow Me religious education curriculum. The Bill contains a proposal that the school should put in its admissions policy the school's arrangements for upholding the constitutional right of any students who do not wish to attend religious instruction in the school. The current situation is that schools facilitate this where possible. There are various practical issues which arise where a parent wishes their child to be withdrawn from class time. As we stated in our submission, we are of the view the proposed wording is confused in its allocation of responsibilities on this issue. It is the parent who withdraws their child from class time. The right to opt out of religious instruction is a State-given right. Schools facilitate this on the basis of practicality and within the scope of available resources on the basis of goodwill. Should this now become an obligation on schools, it will obviously need to be resourced sufficiently. It is also a concern to the board as to how such a new obligation might be fulfilled in a small rural primary school without extra supports. The board requests the committee to give the practicalities related to this issue further consideration.
Head 11 of the draft Bill proposes that schools should co-operate on admissions within a locality. Such co-operation and dialogue among schools locally is encouraged by the Church of Ireland board of education and we understand it to be common practice. A difficulty arises for the Protestant minority schools when such co-operation becomes non-voluntary. Boards of management of a school can choose to freely enter into such arrangements. The proposals would compel schools to co-operate. There is no reference to parental rights in terms of choice of school ethos. It would be important to schools within the Protestant minority tradition, both at primary and second level, that there is recognition of their focus to serve the expectations of parents from that tradition in any co-operative activity on school admissions.
While the proposed abolition of the section 29 appeal mechanism was raised by others, the Church of Ireland board of education wishes to highlight that should this proposal go ahead, it will leave school boards of management in a very difficult position in exposing schools to High Court litigation. Church of Ireland schools are mainly small in numbers with limited resources. Even where resources are available, all will agree that such resources should be spent on the education of children and not litigation. The Church of Ireland appeals to the committee to give careful further reflection to the consequences this proposal will have for both schools and parents. In our view, it is unreasonable and is not based on a parent-centred premise. Any appeals process must be independent and have an inherent integrity. What is proposed in the draft heads is that the same board which sets the policy will hear appeals on that policy for places in its own school. I am sure the committee will appreciate that such an introverted appeals process will cause difficulties for communities in local areas. It will certainly pose problems for chairpersons who are involved in both school life and other community activities. For the Church of Ireland, this poses a real difficulty in the context of smaller close-knit parish-based communities.
The position of the Church of Ireland board of education is one of concern about several provisions in this draft Bill. The consequences of the strong approach of the draft scheme will create a diminished role for school boards of management and school patrons, expose both parents and schools to litigation, and allocate an inappropriate role for the Minister for Education and Skills. We have set out our specific concerns in our written submission. In general terms, the Church of Ireland board of education is of the view that the draft bill is overly prescriptive in what it is attempting to achieve. The board understands the rationale of the Minister and his Department in bringing forward this Bill as it is fulfilling a perceived need for greater clarity, uniformity and transparency in the area of school admissions, which is welcome. However, the draft scheme raises wider societal questions as to the appropriateness of shifting the power to determine the format, content and manner of publication of school admissions policies from the local school community to the Minister for Education and Skills.
Joanna Tuffy (Dublin Mid West, Labour)
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I call Ms Teresa Griffin, National Council for Special Education, NCSE, to make her opening statement.
Ms Teresa Griffin:
The NCSE warmly welcomes this proposed legislation. The NCSE believes all children, irrespective of special educational needs, should be welcome and able to enrol in their local schools. We know, however, that some parents encounter mainstream schools which are not welcoming of their children. We also know that some parents do not provide information about their child’s special educational needs to schools in case the schools refuse enrolment. School management has commented, from time to time, that some schools are more welcoming than others. Some children with very complex needs may require a more supportive special school or special class placement. None the less, parents seeking a placement for their child should not have to worry about the enrolment process or feel under obligation to a school or feel they have to hide the fact their child has special needs. The NCSE considers the Bill, and the associated regulations, represents a substantial progressive initiative. It will remove some of the undue worry of parents.
There are several areas in which the draft Bill could be strengthened. There is a need to ensure both legislative and process clarity. The committee is aware of litigation that has previously occurred. It is important, at drafting stage, to ensure the legislation creates certainty in the rights and duties of all parties concerned. There is also a need to ensure that, whatever the timeframe for the annual enrolment process, schools have sufficient flexibility to plan for specific needs. For example, a school building may need to be adapted, which can take time. Schools may need to open special classes where the need for such a class has been identified by the NCSE.
The NCSE has the legislative duty to ensure sufficient special class and special school placements are available. Sometimes we come across schools that do not want to open a special class or that will open only one type of special class, even where there are students from within the school's catchment area who would benefit from such a placement. This limits our ability to plan for an overall national continuum of educational provision, which is our duty under the Education for Persons with Special Educational Needs, EPSEN, Act. We believe this legislation could be amended at drafting stage to address this gap.
We also believe strongly that enrolment and school admissions must be meaningful. We are aware that some students with special educational needs and some students who do not have special educational needs are only enrolled in schools for short periods of time - perhaps for an hour or two hours a day. There is no national monitoring of the number of schools which have students who attend for short days. This means we cannot be sure if children are getting a meaningful education appropriate to their needs. The NCSE notes that the Bill does not provide for an appeals mechanism against a decision by a school to place a child on a short day. Again, this could be amended at drafting stage. In our policy advice to the Minister on the education of children who have challenging behaviour, we recommended that schools with students on short days should be obliged to report such situations and that oversight arrangements be put in place in order that the State can satisfy itself these students are receiving an education appropriate to their needs.
We know schools must provide students and staff with a safe environment in which to learn and work. I note other commentators have mentioned concerns about the proposed power to be granted under head 4 to An Garda Síochána and the HSE. The NCSE considers that the labelling of children can have very serious life-long consequences and should only be carried out when clinically indicated and by those who are professionally qualified. We consider that this section could lead to a situation where a child is prevented from attending school without a fair process being in place.
We particularly welcome the fact that head 9 of the draft general scheme in effect commences the provisions of section 10 of the EPSEN Act, which was passed by the Oireachtas in 2004 and has yet to be commenced. We know that some school management and other parties may be worried by this. We have heard some of the concerns today, that the NCSE will be able to designate a school for a child with special educational needs who is unable to find a school placement. Their concerns are understandable but I can assure all concerned that the NCSE would not take such a power lightly or exercise it unless it is absolutely necessary. If the legislation is passed, we intend to engage fully with the education partners and the Department before drafting and finalising any NCSE processes and protocols regarding this aspect of the proposed legislation. The needs of the child and the ability of the school to respond to those needs would be central in any decision.
We are all aware that, from time to time, parents encounter difficulty in placing their child with special educational needs. There was an extreme case a number of years ago where a parent applied to more than 20 schools, took section 29 action against all of them and still could not get a school to enrol their child, nor could anyone oblige a school to do so, even where there were places to enrol the child. We do not think this is a reasonable position for any jurisdiction. I am quite happy to answer any questions.
1:50 pm
Joanna Tuffy (Dublin Mid West, Labour)
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The next speaker is Ms Deirdre O'Connor from the INTO.
Ms Deirdre O'Connor:
We welcome the opportunity to address the committee on behalf of our membership of more than 32,000, which includes principals and teachers in primary and special schools. Enrolment in primary schools has long been a concern of the INTO. The objectives of the organisation include "the support of equal access to full education for all children". The principles of inclusivity, equality, participation and parental choice set out in the Education Act 1998 in respect of access to education have been supported by the INTO. The INTO has supported the enrolment, with appropriate support, of children with special educational needs in primary schools and has opposed the provisions which allow religious-run schools to refuse to enrol children on the basis of the faith of the school.
In this submission, I will address the four areas of concern to us in. We have supplied a full written submission. Those four issues are the scope of the legislation and regulations, the need for inclusive and non-discriminatory enrolment policies, the proposals to devolve the function of enrolment to the principal teacher and the proposal to end appeals on enrolment under section 29 of the Education Act.
The INTO is of the view that most schools have effective systems of enrolment. The majority - about 80% - of primary schools enrol all applicants. Where problems have arisen, they have largely resulted from a lack of school places rather than any failings on the part of the existing schools to manage enrolments effectively. The INTO has long sought agreed guidelines on enrolment. Concern has been expressed that over-regulation would be detrimental to the inclusive spirit of primary schools in that it may have the effect of excluding those parents not familiar with the system. The development of agreed guidelines would be a more appropriate response. That said, some of the draft regulations are welcome and could be incorporated into guidelines. These include those relating to the standardisation of timeframes between schools and the proposed elimination of the first come, first served approach. There are still a number of issues that require further guidance, including late enrolments, enrolments by parents in multiple schools and enrolments during a school term. Clear guidance is needed on when a school is full with reference to pupil-teacher ratios, maximum class size, space and the development of sustainable schools. The INTO is in favour of proposals in respect of transparency in the enrolment process and the publication of enrolment policies. We welcome the proposal that enrolment may be refused where a parent does not agree to the school's code of behaviour or where An Garda Síochána or the HSE has provided its opinion that the admission of the student would be seriously detrimental to the safety of staff or students. We feel that provides an appropriate balance between the rights of the child and parents and the rights of staff working in schools.
The INTO is committed to supporting the concept of equal access to full education for all children, and the operation of effective, inclusive, non-discriminatory enrolment policies in schools is key to this. Where demand for places exceeds those available, schools must use fair, transparent and non-discriminatory criteria to select pupils for enrolment. We welcome the proposals that criteria which are directly or indirectly discriminatory on any of the nine grounds should not be permitted. We note that the proposals contained in the draft heads maintain the current exception for religious-run schools contained in section 7.3(c) of the Equal Status Act 2000. The INTO continues to oppose this exception. The INTO welcomes the prohibition of criteria for admission related to parents' ability to pay, academic ability or attendance at open days. Giving priority to the siblings of children already enrolled is seen as sensible and fair. We welcome the proposal allowing discretion in respect of the enrolment of the children of staff for practical reasons.
The largest concern we have concerns the proposal to amend the Education Act to place the principal's responsibility for the admissions policy on a statutory basis. It is acknowledged that the day-to-day management of admissions to a school is carried out by principals. However, the development and implementation of school policy, particularly in cases of refusal to enrol, is a responsibility which has been properly shouldered by the board of management. Any increase in responsibility inevitably increases workload for primary principals, 70% of whom are also carrying out full-time teaching duties. The concerns about the workload of principals, in particular teaching principals, are well documented by the INTO and others. In addition, in a context where promoted posts are being dismantled and at a time of salary cuts, reductions in resources and support in schools and the proliferation of initiatives, the negative effects of such a fundamental change in the statutory role cannot be underestimated.
I will address the proposed repeal of section 29 appeals. The INTO has consistently expressed concerns about the operation of section 29 appeals on enrolment, particularly in the absence of agreed guidelines. These concerns have centred on the lack of transparency and perceived lack of consistency in the process. The proposal that future appeals would be dealt with at board level are received with caution. The INTO is concerned that an outcome which parents would regard as high stakes being finally determined at local level would place enormous strain on a volunteer board, in particular on the principal teacher and, as previous speakers have noted, open up the possibility of litigation against schools with consequences for the principal teacher.
The INTO agrees that this debate on school admissions is timely and important. We thank the committee for listening to our submission.
Joanna Tuffy (Dublin Mid West, Labour)
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I invite Ms Brigid Quilligan, director of the Irish Traveller Movement, to make her opening statement.
Ms Brigid Quilligan:
The Irish Traveller Movement welcomes the opportunity to be present at this hearing. Founded in 1990, the Irish Traveller Movement is a national membership organisation representing Travellers and Traveller organisations.
I refer to a detailed submission we have made in response to the draft general scheme of the education (admission to schools) Bill 2013, and before that to a submission on a framework of an enrolment discussion paper 2011. In that the Irish Traveller Movement, ITM, outlined previous practices of segregation and current experiences of refused enrolment and other forms of discrimination, school bullying and other forms of harassment, limited recognition of and focus on Traveller ethnicity in the curriculum and the inadequate response by many educational establishments to cultural diversity, which impact on all educational participation and outcomes for Traveller children.
While some progress has been made on Travellers in education in recent years, the proposed Bill must be seen in the context of the withdrawal of all Traveller-specific educational supports in 2011 and the 87% cut in the Traveller-specific education budget. There remains a significant gap between the participation and attainment of Traveller children as compared with their settled counterparts. More than 8,000 Travellers are in mainstream education. In 2011, only 3% of Travellers had continued their education past the age of 18, compared with 41% of the settled population, and 17% of Travellers have no formal education compared with 1.4% of the settled population.
The ITM commends some elements of the proposed Bill but it has not gone far enough and further research is required to determine what the effect would be of the proposed changes on the most marginalised children in society, including Travellers. Our main concerns relate to the proposals under heads 5, 6 and 7, namely, the parent rule, the removal of the right to appeal a refusal to admit under section 29, the lack of clarity on the National Educational Welfare Board's powers, and the obligation to require co-operation between schools and other related matters.
Traveller children are statistically far more likely to be excluded from admissions under the proposed 25% parent rule. The ITM is concerned that this rule, which will disproportionately affect Travellers will, for the first time, be put on a statutory footing which cannot be challenged. We recommend the abolition of the parent rule in its entirety. Meanwhile, further clarification is sought, which is not contained in the Bill, on the circumstances where requests for derogations will be refused in situations where the criteria are fulfilled. We also seek statistics on schools which will be eligible to apply for this derogation and any supporting statistical geographic or socioeconomic analysis carried out while drafting this legislation.
Regarding the section 29 right to appeal to the Department against a refusal to admit, as currently drafted, the legislation provides that a board of management's decision, following an appeal of a principal’s refusal to admit, will be final. Although the draft legislation provides that the principal must withdraw from considerations relating to such appeals, we submit that the board of management would not be sufficiently impartial or independent to be the final arbiter in appeals relating to refusals to enrol. The only other avenue then available would be by way of a judicial review in the High Court, an option which is impractical and unavailable to most parents. The right of appeal and access to justice is thus reserved only for those parents who can afford it.
Under the proposed draft, the right of appeal to the Department of Education against a decision to expel or suspend remains in situ. There is a lack of clarity on the National Educational Welfare Board, NEWB’s powers, the obligation to require co-operation between schools and other related matters. It is not explicitly stated under head 9, where the NEWB is empowered to force a school to enrol a particular pupil, that schools will be required to co-operate on the designation of schools.
There is a lack of clarity as to how the Minister will require co-operation between schools pursuant to the legislation and regulations. The draft legislation does not provide for any mechanism whereby the NEWB can independently ascertain whether a school has places or whether the NEWB or the child will have a choice about which local schools are available. Perhaps a live database could be initiated and moderated by the Department of Education and Skills to be updated regularly by principals with clear criteria as to when a school considers itself full.
Alternatively, perhaps a mandatory obligation could be imposed on all schools to take a specific number of such students per year and to account for the ethnic and racial balance of their school and whether it is representative of the local population. Otherwise, there are concerns that Traveller children will be enrolled in the schools in the area that are traditionally less academic, regardless of the attributes and talents of that particular Traveller child. Again the ITM has received feedback that some schools have a history of encouraging Traveller students to transfer to Youthreach after a couple of years of second level education, thereby limiting the student subject choices which in turn limits their access to third level.
2:00 pm
Charlie McConalogue (Donegal North East, Fianna Fail)
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I welcome everyone and thank them for their submissions in advance. Could the Department of Education and Skills comment on some of the comments by subsequent contributors, particularly on the independent appeals process and the removal of section 29? Could the Department also comment on the current rules on deposits and any feedback or statistics it has on that practice?
Ms Lynch of the National Parents Council commented on the role of the HSE and Garda as outlined in the heads of the Bill. Could she elaborate on that? She also mentioned the need for an independent appeals process, on which most contributors commented.
Ms Corr of NABMSE said she does not feel the proposals take into account special needs requirements and supports. Could she elaborate on that and what she would like to see there? How does joint enrolment work and what are her views on it under the proposals?
Mr. Buckley pointed out that the heads of Bill do not allow for the ETBs to have the final decision, as is the case currently. How does that sit with current ETB legislation? I imagine that ETB legislation clarifies that is the way, yet the heads of this Bill suggest something different. Mr. Buckley had a concern about the removal of the school's power to decide not to enrol a student. Could he elaborate on that?
Dr. Ken Fennelly of the Church of Ireland General Synod Board of Education expressed particular concerns about section 29. He felt the proposals were overly interventionist and affected the content and not just the format of the enrolment procedure. Could he elaborate on those concerns and with what parts he has an issue?
Could Ms Griffin of the NCSE elaborate on the short days situation and what she feels needs to happen? She indicated that it is important that the Department be able to assess what is happening and the level of education a child is getting.
I take on board the points the INTO made, particularly on section 29.
The need for an independent appeal process is something on which there was consensus among the contributors today. I ask the Department to comment on this.
2:10 pm
Jonathan O'Brien (Cork North Central, Sinn Fein)
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Deputy McConalogue covered most points but I have one or two specific questions. One of the tables in the presentation document provided by the Department of Education and Skills states the oversubscription criteria to be permitted. One of these is priority on the basis of attendance in a feeder primary school for enrolment in a post-primary school. Post-primary schools teaching through the medium of Irish have an issue. In my constituency all of the recognised feeder schools for such a post-primary school are English-speaking whereas the Gaelscoileanna in the catchment area are not designated feeder schools. Students taught through the medium of Irish at primary level are not given priority or recognition in terms of being able to enrol at the post-primary school. Will the Department comment on this? How we will get over this particular obstacle?
With regard to education and training boards, the academic interview process for post leaving certificate courses and FETAC courses was mentioned and this is important. Has international research been done on how doing away with the interview process can be facilitated under a proposal in this legislation? Does the Department have any comment on this?
With regard to section 29 and revamping the system, initially additional responsibilities for enrolment processes will be placed on school principals. Perhaps this question can be addressed by Ms O'Connor, Mr. Hanevy and Mr. Loftus. Any appeal would be made to the board of management. What is missing is the fact that in many cases, school principals sit on boards of management. I believe head 7 states where this is the case the school principal will not take part in the appeals process. This will put boards of management in a very difficult position whereby they will be asked to adjudicate on a decision made by a principal who, for every other purpose, meeting and reason will sit on the board of management. A board of management is voluntary in nature and contains parents. What training and expertise will be given to individual boards of management? This is not to mention the additional pressure of possible litigation against a board of management with regard to an appeals process. No one will agree section 29 is ideal, and it needs to be overhauled and made more transparent, but what is proposed in the legislation is not the answer.
I have a question for my own information for Dr. Fennelly from the General Synod Board of Management of Education on the schools it operates. Are many of them oversubscribed as it is? If this is the case the legislation will have a significant impact on its sector.
Joanna Tuffy (Dublin Mid West, Labour)
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I ask Mr. Hanevy to answer the questions on post leaving certificate courses as well as the other questions addressed to the Department.
Mr. Martin Hanevy:
I will begin with the question on post leaving certificate courses because it is an issue which can be addressed, and I made a point in my truncated presentation. The Minister is taking a regulatory power. We published the regulations so everyone could see the thrust of what was being done, but they are fundamentally focused on entry to second level. There are subset issues, such as arrangements in special schools and interviews for post leaving certificate courses which is about guidance for the students as to the correct course to take. An interview for a post leaving certificate course is not one which could be a soft barrier to admission. One of the issues we are trying to deal with is soft barriers. We do not believe parents should be subjected to interviews which might be a soft barrier to getting the child enrolled. Clearly there is a valid educational reason for interviews for post leaving certificate courses.
With regard to the issue of an independent appeals process, section 28 of the Act is all about the desirability of resolving grievances and issues locally and local appeals processes. As the 1998 Act is structured, section 29 only kicks in when local processes are exhausted. A section 29 committee should not examine an enrolment issue until local appeals have been executed.
At the beginning, of all the issues which could cause grievance between parents, students and schools, three elements were include section 29. These are expulsion of a child, suspension of a child and enrolment of a child. The first two of these are life-changing and significant events. The argument we have put forward in the discussion document, and again here, is the wide broad brush of including enrolment. There are two types of enrolment problems. The first is where a child has been refused enrolment by a range of schools, including oversubscribed schools but also schools which are not oversubscribed. Ms Griffin spoke about a particular case of which she was aware. The second category is those affected by supply and demand, which is applicable to everyone. We believe there is a better remedy for a child who cannot get any place. Instead of a parent being dragged around appeals committees in the case of special needs children, we implement the original power included in EPSEN and create a power for the National Educational Welfare Board. At present the board petitions schools and assesses and asks with regard to a child who cannot get a place, but it has no ultimate reserve power when it gets the runaround from schools to find a place for the child. This is why children at risk are out on home tuition without a place. Rather than putting people through multiple appeals an ultimate call must be made on what is reasonable in the locality with regard to a school taking a child.
The other problem is oversubscription. This is the case for most third level courses and we do not need a statutory appeals process because parents and students have certainty and belief in the process and they know the criteria. We argue this should be replicated for oversubscribed schools whereby people know the criteria upfront and are told where they fit, and they have information on how far down the list they are. For instance, at Dr. Fennelly's school the first priority is to enrol Protestants. Last year the school spent 70% of its places on this and then went on to geographical boundaries. The people outside of these criteria would know the situation with clarity.
The appeals process at school level in the case of oversubscription is about whether the person was treated correctly under the criteria and a parent appealing would have to show an error was made. One would like to think a school would correct an error without any appeal because it would want to do so. Section 29 was probably included by the Minister's predecessors in the Oireachtas in 1998 in the belief it would be light touch and easy for parents.
However, it has proved litigious, heavy in terms of documentation and a significant burden on a parent attempting to go through the process.
2:20 pm
Charlie McConalogue (Donegal North East, Fianna Fail)
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If a school does not correct the error, where is the parent left?
Mr. Martin Hanevy:
The parent can appeal to the Ombudsman for Children on all matters, but a number of issues arise. There is another remedy. If a school makes errors or there is messing, the Minister could ask the patron to have someone else operate the policy, but this deterrent power is being put on the shelf. Why would someone not want to correct an error?
Joanna Tuffy (Dublin Mid West, Labour)
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Deputy Charlie McConalogue asked a question of the National Parents Council.
Ms Áine Lynch:
I was asked about an expansion of the powers of the Garda Síochána and the HSE. We are seeking greater clarity and possibly regulation. It has been suggested this should happen where a student entering a school could have a seriously detrimental effect on the safety of other students and-or staff. If so, we question who in the Garda and the HSE would make these decisions, how they would be made and on what they would be based. As there is no clarity on what this process would entail, we cannot support its inclusion. The effect of a refusal of enrolment in a school because of a decision on the level of impact on staff and other children, thereby labelling the child and family and possibly affecting enrolment in other schools, would be significant. More detail is necessary.
The Deputy asked us to expand on section 29. If many of the Bill's provisions were implemented in schools, the need for appeals would be lessened, as the provisions would tighten current processes. However, where a parent believes a school's admission procedure does not comply with the legislation or has not been applied to his or her situation, he or she must have somewhere to be heard outside of the school if the local appeals procedure has already been exhausted. We are not saying someone who does not get his or her first choice should be able to appeal the decision. The sense is that an appeals mechanism is being considered under head 9 and the powers of the National Educational Welfare Board, NEWB, and the National Council for Special Education, NCSE. It may be expanded on to deal with this matter. I take the point that the Minister or patron could apply the ultimate sanction and put in place someone to make these enrolment decisions, but if there is no independent appeals mechanism for parents to be heard, how will we become aware of issues in schools?
Joanna Tuffy (Dublin Mid West, Labour)
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Deputy Jonathan O'Brien asked a question of Education and Training Boards Ireland.
Mr. Evan Buckley:
There were two, if not three, questions. Deputy Charlie McConalogue asked about the legislation, the difficulty regarding the sub-committee that is a board of management and the ETB committee. This issue can be addressed by a small addition to the proposals allowing for decisions of the board of management to be ratified by the ETB committee. Currently, it is not open to a sub-committee of the ETB, the school board of management, to make independent decisions of its own accord. They must be ratified.
None of us wants an interview process that decides on admission for the wrong reasons, but interviews at the post-leaving certificate, PLC, level are important for significant reasons. Applicants' skills need to be appropriate to certain types of course. In the case of outdoor education and water sports, for example, one would need to check whether a person could swim. There are many adults participating in PLC courses and their previous education histories are important. If someone is applying to attend a level 6 course, it is entirely appropriate that he or she should have level 5 or equivalent experience to ensure he or she can manage the course's learning requirements. It is important that these issues be teased out with the applicant in advance. In practice, if a level 6 course is not appropriate, the person is never refused but directed to the appropriate place. The key element is the interview process with the applicant prior to admission to the course. We will seek to have this practice included.
I was asked a question about the concern that head 14 would repeal section 19 of the Education (Welfare) Act 2000, under which a school cannot refuse enrolment unless doing so is in accordance with the admissions policy. The reverse of this, where a school can refuse enrolment if it is in compliance with the admissions policy, needs to be retained in some way. This provision might have been lost in the way the Bill was constructed.
Joanna Tuffy (Dublin Mid West, Labour)
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Does Ms Quilligan wish to contribute?
Ms Brigid Quilligan:
Deputy Charlie McConalogue mentioned section 29 and the judicial review. This is the reality for many Traveller parents. I imagine that the number of people using section 29 in respect of Traveller parents, children from disadvantaged backgrounds and children with special needs traditionally has been very high. In our experience, certain schools show a great deal of animosity towards Traveller children. Traditionally, Traveller children who went on to secondary school were directed to vocational or other schools that might not have had high academic outcomes for students. Even now, Traveller children are subject to part-time hours in such schools, in that they are seen as a problem rather than someone valuable. Even before admission, a Traveller child is seen as a problem, regardless of academic ability or background and it is purely because he or she is a Traveller. Many schools do not want to have Traveller children.
When going through an application process, it is difficult for a Traveller parent to know which school is full and which is not. Traveller parents, including me at one time, applied to several schools in a particular area to get the best outcomes for their children. We wanted the same educational outcomes for our children as anyone else around the table, yet we received a blanket "No." There are many barriers for Traveller and migrant children in terms of the parental rule. A reduction to 25% has been suggested, but this remains a significant barrier for children who historically have had no parent or older sibling attend a particular school. The only effective means of getting a child into a school is by using section 29, despite the fact that it is ineffective. When one takes a case, the basis of the ruling is whether a school used its own criteria. Sometimes, these criteria exclude children from various backgrounds.
Other speakers today have spoken about fairness of access. It is important that the voices of Traveller, migrant and immigrant children and children with special needs, who are traditionally excluded from schools, are heard. What might appear like a fair appeals process to the general community can be a huge barrier for the parents of these children. We know this from experience. There are many people lining up in our law centre to take cases based on their not being able to enrol their child in a school of their choice. It is hugely important that children who are trying to achieve, particularly children who are at an educational disadvantage, such as Traveller children who traditionally would not have attended school, can access a place in the right school so that they are in an environment where they are supported, loved and encouraged to reach their potential. Unfortunately, the choice of schools available to Travellers because of enrolment policies is now very limited. This is limiting Travellers' progress in the education system.
2:30 pm
Joanna Tuffy (Dublin Mid West, Labour)
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Thank you.
Ms Breda Corr:
Deputy McConalogue put two questions to me, the first of which relates to joint enrolment. Joint enrolment is provided for in the Education (Welfare) Act 2000. However, in practise what happens is that it boils down to the two local schools agreeing how this will operate. There are no strict criteria in this regard. The Department does not get involved. Generally, one school chooses to take the capitation grant and this is then the school where the children is enrolled. This is a very helpful process in transitioning students into mainstream school or between schools on particular days of the week. That is important. This is being done but at good will level. There is an opportunity for this to be provided for in law. The current process is working but very much on a local level.
I am not sure if the Deputy's next question about resources relates to the NCSE.
Charlie McConalogue (Donegal North East, Fianna Fail)
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It was in response to Ms Corr's reference to the concerns around resources for schools taking on children.
Ms Breda Corr:
The concern is that schools might be asked to take on a child and in this regard would expect resources to be made available to them, because this is what the NCSE would like to do. It may be the case that the resources are not available. For example, the ceiling in regard to teacher numbers, SNA numbers and in respect of transport provision may have been reached. There is a fear that this would not automatically happen, as is often the case. Some schools will take on students but they may not necessarily get the resources they expect in the psychologists report or generally. They might expect to get an SNA or additional hours but may not get it immediately. It is important that resources where a child is imposed on a school resources follow. I hope that answers the Deputy's question.
Charlie McConalogue (Donegal North East, Fianna Fail)
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Yes, thank you.
Joanna Tuffy (Dublin Mid West, Labour)
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Before inviting the witnesses to respond further, I will allow questions from Deputy Joan Collins.
Jonathan O'Brien (Cork North Central, Sinn Fein)
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Perhaps the witnesses from the Department could respond to my question in regard to Gaelscoileanna and designated feeder schools.
Joanna Tuffy (Dublin Mid West, Labour)
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I will come back to Deputy O'Brien in a few minutes.
Joan Collins (Dublin South Central, People Before Profit Alliance)
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A lot of issues have been already covered. Perhaps the witnesses would elaborate further on the Protestant ethos issue. I have listened carefully to what everybody had to say. There are little nuances with which people have a problem and are seeking clarification on from the Department of Education and Skills. There are also fundamental issues in regard to the Traveller and migrant communities. I know that the position of the Department is that it is not possible to treat Travellers specifically because everybody should be treated the same. However, some communities have particular needs. Where a community's needs are not being met within the education sector, there must specific criteria put in place to assist them. The Department needs to look at this. I do not understand why this is a problem.
The CSO has data on the number of special needs and Traveller children in this country. It also has information on migrant children, although this data may not, because of the movement of migrants, be as firm. Surely it is possible, based on this information, to plan for future educational needs in particular areas. The Department needs to look at school provision within areas and plan ahead based on CSO information. I do not understand why doing so is a problem. Ireland is a small community unlike the United States where it may be difficult to pull this information together.
The issue in relation to section 29 is one for everybody. Perhaps the Department would take another look at that. Everybody believes it is putting too much pressure on the boards of management. It has been stated that there is transparency in regard to enrolment and so on, which I welcome, and that as a result the number of future appeals will reduce. If this is the case, why then cannot an independent appeals process be put in place in this regard? I am not sure whether that suggestion is practical or whether parents would go straight to this process rather than engage first with the local process. The strength of the local process and transparency of the system will determine whether cases will be appealed. I would welcome a response from the departmental officials on the removal of the parent rule as proposed by the Irish Traveller Movement and on what else could be put in place within the Department to ensure that children from the Traveller and migrant communities and children with special needs are specifically catered for.
Marie Louise O'Donnell (Independent)
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I would like to make an observation and ask one question. I am delighted to welcome Mr. Loftus back again. We have batted here before. I consider him a fine public servant.
Many of the witnesses have welcomed the draft regulatory framework, which is good. They also have specific questions about it which need to be answered. Some very interesting observations have been made, including that 8,000 Traveller children attend mainstream education but only 3% of them go on to third level. Is that an enrolment issue?
Ms Brigid Quilligan:
Not always. Historically, Traveller children have attended schools in which expectations of them were very low. Even in my time, children would have been segregated and put into resource classes in which little or no school work was done. Children often spent time combing the teacher's hair and sweeping the classroom floor. Naturally then when these children go on to second level they are not at the same level as their settled peers and they slowly drip away from school. We are lucky if in 2013, Traveller children remain in school up to third year.
Marie Louise O'Donnell (Independent)
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I worked in Ballymun for 25 years and I am very aware of education in disadvantaged areas. I am not too sure they are the reasons. I would caution against speaking badly about vocational education. It is outstanding. One cannot say one school is better than the other. The Government is now completely if not entirely dependent on vocational educational in relation to the youth guarantee. It is one of the finest educational aspects of our education system. I would caution against the idea that because particular children go into vocational education something negative happens. It does not. Vocational education is probably one of the best methods of teaching in relation to apprenticeships and education plus trade plus work well done plus labour market.
I do not necessarily believe that integration means equality. Would Ms Quilligan be in favour of Traveller education?
There are some other observations I would like to make. We have all this integration and we are integrating to the point that we cannot breathe. Half the time we are integrating and calling the process "equality" but it is not that. I have a question but that was just an observation. We can have a conversation later.
2:40 pm
Joanna Tuffy (Dublin Mid West, Labour)
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I will have to bring in some other people first but I will then allow the Senator back in.
Marie Louise O'Donnell (Independent)
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I have one other question. The platform of Dr. Fennelly's argument was about content, as distinct from format, being affected by the draft regulatory framework. Will the witness give some concrete examples of that?
Joanna Tuffy (Dublin Mid West, Labour)
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Will Dr. Fennelly respond to those questions?
Dr. Ken Fennelly:
Several members asked about oversubscription, which is the easier issue. There are 174 Church of Ireland schools in the country, with another 24 Presbyterian, Methodist and Quaker schools, so there are approximately 200 Protestant primary schools. Approximately 55 of them are in urban areas, and oversubscription is an issue for them. It is also an issue for another ten or 15 schools in specific rural areas. That adds up to 50 or 60 schools from the 200, so approximately 25% or 30% operate on oversubscription criteria. It is not a major problem in terms of numbers but it is an issue for the specific schools.
In terms of content and format, it was one of the first issues that struck us as the board of education sat down to reflect on this. Head 4 indicates that regulators "may" require that the admissions policy of the school "shall" set out the characteristic spirit and general objectives of the school. That means the ethos statement of the school will be in the admissions policy that must be given to the parent. That is fine. The head also indicates that there will be prescription of the "content" of the policy. We have a concern that as a board tries to formulate its own policy regarding admissions to its school - it should be remembered that we are considering this through the prism of religious ethos - the Department may stipulate that it cannot ask about whether a person belongs to a particular parish or the denomination of the child. It seems to be relieving the board of its autonomy or the scope it had before. That is why I used the term "interventionist", as we feel there is a hand coming into the work of the board from the Department of Education and Skills or the Minister that was not there before. That feeling was very strongly expressed at our board meeting.
Joanna Tuffy (Dublin Mid West, Labour)
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There was a question about planning ahead for special needs in schools.
Ms Teresa Griffin:
There were two questions, with one earlier from Deputy McConalogue regarding expansion of the short days. Even for four year olds and five year olds, typically children can be phased into going to school. For the first week the child might go in for a very short time. When we did our consultation leading to policy advice on challenging behaviour and the education of children with challenging behaviour arising from a disability, it became very clear that there were a number of cases in which children with disruptive behaviour were only allowed attend school for a short period. In some cases it was part of a phased programme but in others, parents have told us they had no idea when the process would end, despite trying to engage with the school. They have no way of appealing to the school and, having spoken to representatives, they are told there may be a change if behaviour changes. We tried to find out a little more information at that stage but the education of children on short days seems to be nobody's responsibility and there is no way for the State to satisfy itself that these children are receiving appropriate education for their needs.
In our policy advice we suggest that there needs to be some oversight, and when the draft general scheme came to our attention, we saw there were grounds for appeal against a permanent expulsion or suspension of a student but there were no grounds for appeal where a student is enrolled and perhaps attending every day for one hour, with the process proceeding ad infinitum. Therefore the child may not get an education appropriate to his or her needs. We saw it as an opportunity at the drafting stage to see if the gap could be closed.
With regard to planning, I agree with Deputy Joan Collins. Through our special educational needs organisers we have much information from the HSE and parents regarding children with special educational needs. We try to supply a national provision of education to ensure there are enough places in special schools or special classes attached to mainstream schools. Many schools will open special classes but there are cases - I am currently aware of one - in which the special educational needs organiser finds it impossible to open a special class at post-primary level, while another school that already has two classes is willing to open another two to cater for people's needs. The resources are not shared evenly and we cannot plan for issues. Students would have to travel for longer in some instances, for example. There is a gap as schools are not obliged to provide the full range of educational provision, so where there is a need, typically within the school's normal catchment area or provision, the matter could be reflected in the drafting.
Ms Deirdre O'Connor:
Perhaps I can clarify the proposal to devolve the statutory function for primary decision making regarding enrolment to the principal. I reiterate the point about teaching principals in primary schools, as these are not people sitting in offices. They are standing in a classroom with 27 or 28 children, and their capacity to carry out additional work is very limited. Principals are very mindful in schools that they have relationships with existing parents and parents in the community. They live and work in the communities and take decisions, whether they are regarding oversubscription or whether a child cannot get a school place. This is a high-stakes decision for a parent.
The Department is making a distinction between a situation in which a child is simply not able to get a school place and a parent's choice. One of the ironies, as I pointed out, is that there are no criteria in these regulations for oversubscription and there is nothing stipulating when a school is full. Many of the fundamental appeals are an argument that a school has room for a child but has arbitrarily decided not to take the child. There may be space in fifth or sixth class, if one does a simple sum of dividing the number of pupils by the number of teachers.
With regard to the role of a principal, there is also a fear that if a principal took a decision that was subsequently overturned on appeal to a board, the principal would be put into conflict with the board, and no principal wants to be in that position with an employer. A parent may also believe that a board will back up a principal and uphold his or her decision, so the ultimate appeal line with the board or the primary decision making line with the principal is not satisfactory.
With regard to the provision of education for Travellers and children with special educational needs, it is very regrettable that resources for Traveller children were withdrawn in 2011. It is kind of an unintended consequence of the integration that Senator O'Donnell mentioned.
Marie Louise O'Donnell (Independent)
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I have been mentioned in dispatches.
Ms Deirdre O'Connor:
The withdrawal of resources for Traveller children in 2011 was kind of an unintended consequence of a move towards integration. In view of the disadvantages that Traveller children have experienced, there is a need for additional support for Traveller children in primary schools, as there is for children with special educational needs.
Marie Louise O'Donnell (Independent)
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It was not a good move.
Joanna Tuffy (Dublin Mid West, Labour)
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There was a question regarding gaelcholaistí.
Mr. Martin Hanevy:
I might link this to a wider point.
The issue of feeder schools is one of the things with which we are not interfering, as the schools would see it. It is one of the things the Minister is not making impermissible. Fundamentally, the intrusion these regulations make in the content of admissions policies is being kept to a minimum. The relationship with feeder schools, where that exists, is not being banned or outlawed.
The probable answer to the example case is one of two things. It might be that feeder school arrangements were originally set in respect of a second level school prior to the establishment of some of those Gaelscoileanna or Gaelcholáistí. However, that is one of the things on which schools have autonomy. Some of the feeder school arrangements might flow from planning decisions, where a second level school was located due to where people were coming from, transport routes and so forth. It is a space on which we are not proposing to prescribe. The issue is that, whether by local co-operation, discussion or agreement, the feeder school arrangements of a school can be updated.
2:50 pm
Jonathan O'Brien (Cork North Central, Sinn Fein)
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They were only updated this year, and that was the issue. We had a Gaelscoil which was a designated feeder school, but this year it is not.
Jonathan O'Brien (Cork North Central, Sinn Fein)
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Can I also get clarity on section 29? Mr. Hanevy said in his presentation that section 28 was about resolving the issues locally. However, if one looks at the figures for section 29 appeals, in 2012 there were 355 appeals. A total of 141 of these were resolved before a hearing, 66 were upheld and 147 were not upheld. In the previous year, 123 were not upheld, while in the year before that, 171 of the appeals were not upheld. It is clear there is a value to having an appeals process outside of local structures because, in many cases, the local resolutions are not working.
Mr. Martin Hanevy:
If I can make a general point, all of this is helpful because the Minister must achieve wisdom as to where to strike the balance here. The committee, as Members of the Oireachtas, will also have similar calls to make when the legislation comes before them. I am a little worried about the INTO presentation. If I heard it correctly, it stated that because of the relationship between a principal and the board, a board could never really wish to overturn the decision of a principal. The ramifications of that are wider than just enrolment. They are about everything in school life. The principal is the person who executes the policy of the board, but is accountable to the board. If parents cannot have an appeal to a board on day-to-day matters, the enrolment is only in the ha'penny place, because that is a far more consequential matter.
On the issue of section 29 and where the balance is here, our argument is that there are other remedies. I will go through one, and this might help with the matter of Travellers as well. I want to deal with this issue-----
Joanna Tuffy (Dublin Mid West, Labour)
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As quickly as possible.
Mr. Martin Hanevy:
Yes. One of the things we are not permitting is the parent rule, but I will return to that. If a Traveller child or Traveller children are seeking enrolment, we are saying the default position, where there is no oversubscription, is that the school absolutely must enrol them. That is a huge leap forward. There are no appeals to flow from that because the school simply must do it.
On the point about oversubscription, it might not be clear and it might be a fault in our first efforts at drafting, but we are saying that the school must declare up-front for people at the start of the process whether the school is going to be oversubscribed. If the school does not do that, by definition it is not. A school that might think it will be squeezed must say it is going into oversubscription and outline the criteria. It must also state how many places it will fill. In every other school, including the vast majority of the 70% of schools that do not have walking principals, the walk load will be much lighter simply by virtue of the fact that they will be enrolling everyone. First, in 80% of the schools which are not oversubscribed the Traveller child or any other child must be enrolled. Where there is oversubscription the Traveller child does come up against whatever balance is ultimately struck on the parent rule. However, the parent rule and the long waiting list are part of the two policy themes here. One is about special needs children and soft barriers and so forth, and the other is about the person who moves around. That is the Traveller and the migrant mentioned by Deputy Joan Collins, but also the indigenous population or our diaspora, who might be hoping to return to Ireland in a few years. People might be in Australia at present and have a young family out there but they wish to return to the Irish schools. They are also disadvantaged by a certain category of things if they are arriving back and they cannot fulfil the fixture. One of them is potentially the parent rule. It could also be a person in this country who loses his or her job and must move elsewhere in the country.
Jonathan O'Brien (Cork North Central, Sinn Fein)
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There is also the issue of a derogation.
Jonathan O'Brien (Cork North Central, Sinn Fein)
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Is the derogation given up-front as well? If a school must declare up-front that it is over-subscribed, does it apply for a derogation before the enrolment process begins, or how does it work?
Mr. Martin Hanevy:
We are not permitting any schools to start this as a process. If they have not been doing this, they cannot introduce it. If it has not had long waiting lists, it cannot introduce them. With regard to the derogation on waiting lists and on the parent rule, as it is called here - the past pupil rule is another way to describe it - one must prove one has had it and used it to get the derogation. It is set at 25%, but that is a just a figure. It could be 10%, 50% or some other figure. Equally, there is a lobby arguing that this interferes with the autonomy of the school. There are tensions in this and there is a balance to be struck.
Joanna Tuffy (Dublin Mid West, Labour)
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I will invite Ms Quilligan to speak at this point to respond to the questions asked by Senator O'Donnell.
Marie Louise O'Donnell (Independent)
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It is devastating.
Ms Brigid Quilligan:
The effects of the cuts have been devastating. Already, we do not know the transfer rate for children coming from primary to secondary school. We know that no interest is being shown in Traveller children in schools. They are being expelled left, right and centre.
The Senator raised a number of points. The first was about vocational education. I agree with her that vocational education is a wonderful route, if that is one's choice. However, some children, regardless of their background, have aspirations to be doctors, scientists or academics.
Marie Louise O'Donnell (Independent)
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That can happen in a vocational education system.
Marie Louise O'Donnell (Independent)
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There is a mindset here, although it is not an argument for today in the committee. However, there is a mindset. I have been an educationalist all my life and I believe in the seamlessness of it. Great teachers are great teachers no matter where they are. I do not believe that somebody in the vocational education system cannot go on to third level and become a great academic, although, believe me, it is a dull old life. However, that is off the record. It is an argument for another day.
Joanna Tuffy (Dublin Mid West, Labour)
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What we largely have now is no longer vocational colleges but community colleges with a broad education.
Ms Brigid Quilligan:
That was going to be my central point. In terms of clarification, from my perspective as a Traveller activist, with regard to vocational education, what traditionally happened to Traveller children and young people is that after the age of 12 or 13 years they would never transfer to secondary school but would be routed into training centres with a vocational theme. Rather than community colleges, these were places where there were very low expectations and people would learn sewing, knitting and cooking.
3:00 pm
Marie Louise O'Donnell (Independent)
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Those are great skills.
Marie Louise O'Donnell (Independent)
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That is fine.
Ms Brigid Quilligan:
I agree with the comment on community colleges. I am from Killarney and two of the best schools in Killarney are community colleges. They provide the best opportunities and variety of opportunities for students.
Traditionally, Traveller children would have been routed into places which had no academic expectations of them. There was a presumption which persists that they would not do a junior certificate examination and they would not achieve anything or go to college via any route. That is where my organisation comes from.
We agree with integration. Traveller children must have their ethnicity and culture respected and shown in the curriculum in order for them to feel safe, supported, wanted and included. I want an educational environment where they do not have to hide their identity and do not have to pretend not to be a Traveller in order to succeed. That is what I want an integration system to comprise of. I want children to be valued and for them to know their history rather than have it beaten out of them which we know has happened in the past.
Marie Louise O'Donnell (Independent)
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They is less chance of that happening now history is a short course on the middle school curriculum. I have had rows in here on the matter. I thank Ms Quilligan for the explanation. I must attend a vote elsewhere but I am happy to talk to the delegation again.
Marie Louise O'Donnell (Independent)
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The delegation should talk to the Department of Education and Skills.
Marie Louise O'Donnell (Independent)
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The organisation should berate Mr. Hanevy out the door about cuts in resources. I am interested to hear what Ms Deirdre O'Connor has to say.
Joanna Tuffy (Dublin Mid West, Labour)
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As the bells have just commenced for the vote we have a couple of minutes. Does anyone wish to comment before we wrap up?
Jonathan O'Brien (Cork North Central, Sinn Fein)
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Deputy McConalogue asked what will happen if the matter is not resolved at a local level. Mr. Hanevy responded on two occasions that there are other remedies and I ask him to explain the other remedies.
Mr. Martin Hanevy:
I said that we were putting in other remedies to mitigate the problem. I also made the point that there should not be any appeals in 80% of schools because they are now required in law to enrol everyone. We believe that a section 29 process would mean that we would have a power of designation for the school for whatever reason it invokes. We have one for special needs kids and one for all other kids. They are the big remedies. There is an overarching remedy. If there is profound messing going on in a school the Minister can intervene.
The net question is on enrolments that flow from oversubscription. What will the appeals committee do if the school has honourably done the right thing according to its own criteria? I noted the concern expressed by the National Parents Council when it asked what if they have not done so. It is a different issue when a school makes errors and parents correctly point them out but the school does not refuse to correct its errors. That is a wider issue than enrolment and is about everything that permeates down.
Jonathan O'Brien (Cork North Central, Sinn Fein)
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That is done at the expense of a child's education. We should not lose sight of that fact.
Mr. Martin Hanevy:
I not trying to lose sight of the matter. There are wider issues beyond that regarding the decisions that are made every day in a school that can affect a child's education and whether the school principal and board listens to the voice of the parent. As the committee will know, the Minister is talking about providing a parental charter to underpin the matter.
Mr. Hubert Loftus:
I wish to add to what Mr. Hanevy has said. The greater level of information for the applicant the better. When applying for enrolment the applicant will know the criteria, will be self-declaring and provide evidence that they meet the criteria. Then the school principal will - I do not see it as a major decision - verify whether an application meets the criteria and if there are errors the board of management will act as the appeals process. We are talking here about a fourth layer above that again. If there is confidence that the process is done right and it is very transparent and clear, then we think that it is very workable and better than the current flawed section 29 process.
Ms Breda Corr:
We welcome the provisions of the Bill as it contains a lot of good things. However, the provision of special education, be it in special school classes or in mainstream, needs to be considered. There is a move towards mainstream in law, the Department and the NCSE and that needs to be taken into account.
Ms Deirdre O'Connor:
The first issue relates to potential conflict between the principal and the board. The difference when a board makes a decision on enrolment is that all of the stakeholders make the primary decision. However, there are situations where principals and boards are not in agreement. This is one measure that does need to start off at that point.
We have had some consideration of section 29. Through the regulatory impact assessment, one of the things that was highlighted by the Department was cost. It would be very unfortunate if all of the points that were made here, by all of the parties, were overridden by a potential cost of litigation against the Department regarding section 29 appeals. That matter needs to be addressed.
Mr. Hubert Loftus:
The real decision in terms of enrolment at school level is not necessarily just by the school principal, it is by the board of management in setting the enrolment policy and we require them here to do the consultation. That is the real decision-making process. The school principal merely implements the policy.
Jonathan O'Brien (Cork North Central, Sinn Fein)
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Is Mr. Loftus saying that the board of management will set out the policy, the principal will implement and if he or she fails to do so the matter will be appealed to the board of management which set out the policy initially?
Jonathan O'Brien (Cork North Central, Sinn Fein)
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That does not make sense.
Jonathan O'Brien (Cork North Central, Sinn Fein)
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I shall outline what has just been said. The board of management will set out the policy, the principal will implement it on behalf of the board of management.
Jonathan O'Brien (Cork North Central, Sinn Fein)
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If he or she does so in the eyes of a parent they will appeal it to the board of management who will adjudicate on its own formulated policy.
Jonathan O'Brien (Cork North Central, Sinn Fein)
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The Department needs to re-examine the matter.
Mr. Martin Hanevy:
The current Education Act and all of the relevant legislation posits the board of management as being the management of the school and the employer. I can assure the Deputy that if the Department started to tamper with the provision my colleague on my left, Dr. Fennelly, and most of the other school bodies would claim it was interference.
Ms Brigid Quilligan:
Perhaps when they consider the matter the Minister and the Government might understand and hear the voices of Traveller children and parents, and migrant children, that the 25% will impact on people's ability to access school and enrol. In terms of outlining criteria, what if people, especially nomadic people, do not live in the area? What if the parents have no literacy skills? What if this is the first member of the family to enter secondary school? Supports have been taken away, there are not more visiting teachers and there is no liaison person to inform the parents about the criteria. A person without literacy skills cannot read policies and the Department must take that fact into account.
Joanna Tuffy (Dublin Mid West, Labour)
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We shall take all of these issues, draft a report and return to the Department. Therefore, the Department cannot answer the questions at present.
Charlie McConalogue (Donegal North East, Fianna Fail)
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I wish to make a short comment on the appeals issue. I take on board what has been said.
The next stage of appeal for a parent refused by the board of management is a High Court case or judicial review. This is something the Department must reflect on. The option of the Department taking over responsibility is the nuclear option. It can be used as a stick.
For clarification, we received a submission from Cearta Oideachas parents in respect of students of Irish-speaking parents or students who have an Irish competence and ensuring gaelscoileanna have the capacity to enrol them.
3:10 pm
Joanna Tuffy (Dublin Mid West, Labour)
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That is a matter for next week.
Jonathan O'Brien (Cork North Central, Sinn Fein)
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The Department of Education and Skills may not be here next week.
Mr. Martin Hanevy:
I will clarify the point as matters stand. Among the matters impermissible in an enrolment policy, there is no mention of a language test. If gaelscoileanna want to be able to operate a language test criterion, the board of management and a patron can do that. A second issue, which is a matter for reflection, is considering how it is operated. It runs against the proposal for not having interviews. If that involves interviewing parents, interviewing children or having Irish tests, the Minister and the Government must reflect on the desirability of parents being interviewed for anything to do with enrolment. Having it as a criterion in the admission policy is, by default, permissible as the regulations are drafted. It is permissible as it is not listed as being impermissible.
Jonathan O'Brien (Cork North Central, Sinn Fein)
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We must reflect on the situation. I will not name schools but students in my constituency transfer from primary to post-primary on the basis of the sibling rule and from English-speaking speaking primary schools into a post primary school that uses the medium of Irish. Some 300 yards down the road, gaelscoil students have been taught through the medium of Irish in primary school but are not able to get into the post-primary school.
Jonathan O'Brien (Cork North Central, Sinn Fein)
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Yes, unfortunately.
Mr. Martin Hanevy:
It is a Catholic ethos school and it is entitled to refer to that ethos, as is a Protestant school. It moves through its criteria for oversubscription and it made a change about one of the schools. That is the autonomy question and the Minister is not proposing to be hands-on in every field. Whether the remedy for that is a discussion between the interested parties, schools are being given a choice to cascade people where they are oversubscribed. Where they are under-subscribed, they have no choice and that includes a gaelscoil taking on someone who does not meet the language test but who wants to go there. In the case of oversubscription, patrons have autonomy except on a limited number of criteria.
Joanna Tuffy (Dublin Mid West, Labour)
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This is the first of three meetings and we had great demand from groups to make presentations. Everyone has been crammed in at once but that was the only way we could include everyone. I thank the witnesses and the members.