Josepha Madigan (Dublin Rathdown, Fine Gael) | Oireachtas source

As the Minister of State with responsibility for special education and inclusion, I am very pleased update the House on how this legislation is intended to work to support children with special educational needs to gain access to specialist class placements that can meet their needs. There are 12 sections to the Bill and I will set out more detail on the key provisions under each section.

Section 1 provides a definition in the Bill that any reference to the “Act of 1998” means the Education Act 1998. Section 2 defines "special class" for the purposes of the Education Act 1998 in line with the definition already set out in the Education (Admission to Schools) Act 2018. This defines a special class as a class that has, with the approval of the Minister, been established by a school to provide an education exclusively for students with a category or categories of special educational needs specified by the Minister.

Section 3 provides for an amendment of section 8 of the Education Act 1998 to set out additional functions for school patrons relating to special educational needs. These functions require school patrons to co-operate generally with the National Council for Special Education, NCSE, in particular by providing and operating special classes when requested to do so by the NCSE; ensure that the admission policy of the school accommodates the admission of children with a disability or other special educational needs; and comply with any direction given under section 37A to make provision for children with special educational needs.

Section 4 provides for an amendment of section 9 of the Education Act 1998 to set out an additional function of a school and amend an existing function. This function requires schools to co-operate generally with the NCSE, in particular by providing and operating special classes in accordance with any directions given to a patron or a board under section 37A and in accordance with any direction served by the NCSE under section 67(4B) to admit a particular child. The amendment to the existing function requires schools to establish and maintain an admissions policy which provides for maximum accessibility to school, including to students with a disability or other special educational needs.

Section 5 provides for an amendment of section 15 of the Education Act 1998 to set out additional functions for school boards relating to special educational needs. These functions require school boards to co-operate generally with the NCSE, in particular by providing and operating special classes when requested to do so by the NCSE; ensure that the admissions policy of the school accommodates the admission of children with a disability or other special educational needs; and comply with any direction given under section 37A to make provision for children with special educational needs and any direction served by the NCSE under section 67(4B) to admit a particular child. While the vast majority of our schools provide for children with special educational needs, it is worthwhile to make these functions explicit for all schools. That is why we are adding these new functions for schools, boards of management and patrons.

Section 6 provides for the substitution of the current section 37A of the Education Act 1998 to provide a shorter and truncated section 37A process. The substituted section 37A provides that where the NCSE is of the opinion that there is insufficient capacity in an area in relation to the provision of education for children with special educational needs, it shall prepare and submit a detailed report on the matter to the Minister. The NCSE report shall specify details on the existing provision in the area concerned; any relevant proposed or existing school building projects which may affect capacity; any schools in the area the NCSE considers could meet additional demand; which schools the NCSE considers should be requested to make additional provision; and such other matters as the NCSE considers appropriate. On receipt of a report, and where the Minister is of the opinion that a relevant person, defined as a patron, board or any other person with a vested interest in the school premises, should make additional provision for children with special educational needs, the Minister may issue a notice in writing. A notice shall set out the Minister's opinion that the relevant person should make additional provision for children with special educational needs and state the reason for his or her opinion, include a copy of the NCSE report, specify details of the measures to be taken by the relevant person, detail the resources to be provided to the school, detail any property arrangements to be made, including any arrangements in relation to the school accommodation, and direct the patron or board to share the notice with any other person to whom the ownership of the school premises is vested where that person is not known to the Minister.

The substituted section 37A also provides that a relevant person on whom a notice is served may make representations on any matter set out or specified in the notice within 14 days. After consideration of any representations received, and where the Minister remains of the opinion that a school should make additional provision for children with special educational needs, the Minister may serve a copy of a draft direction on a relevant person. A relevant person on whom a copy of a draft direction is served may make representations in relation to the draft direction within 14 days. After consideration of any representations received in relation to the draft direction, and where the Minister remains of the opinion that a school should make additional provision for children with special educational needs, the Minister may serve a direction on a relevant person. The direction shall set out the measures to be taken by the relevant person in relation to making additional provision for children with special educational needs, the period during which such measures shall be taken and any other relevant matters. The relevant person shall comply with such a direction.

The substituted section 37A also provides that all notices issued, representations received, draft directions and ministerial directions shall be published on a website maintained by or on behalf of the Minister. The Minister shall review this provision within three years of its commencement and shall furnish a report to each House of the Oireachtas of his or her findings and conclusions resulting from that review. A transitional provision is also provided for, which allows any work undertaken by the NCSE in preparing a detailed report under the existing section 37A process to be deemed a report for the purposes of section 37A (1), as amended.

Section 7 provides for an amendment of section 61 of the Education Act 1998 to require schools to include a further statement in the admission statement, which is part of their admission policy, setting out that the school shall co-operate with the NCSE generally and, in particular, in relation to the provision and operation of a special class or classes when requested to do so, and a further statement that the school shall co-operate with any ministerial direction under section 37A and any direction by the NCSE or Tusla under section 67.

Section 8 relates to section 67 of the Education Act 1998 which provides for the NCSE or Tusla to designate a school place for a particular child. To date, this section of the Act has not been commenced. Section 8 provides for the amendment of section 67 of the Education Act 1998 by removing the provision for an appeal by a school board against a decision of the NCSE or Tusla - "the Agency" - to designate a school place for a child.

The provision allowing a parent to appeal a decision of the NCSE or Tusla not to make a decision to designate a school place when requested by a parent to do so is also being removed. It is considered that this provision is not necessary given the option available to a parent to appeal a decision of a school board to refuse to admit under section 29 of the Education Act 1998 and the fact that it is expected that the NCSE will make a decision to designate a special class or special school place in situations where there are places available. Where there is a lack of places, this can be addressed through the section 37A process.

Provision is also made to allow a school board to make representations to the NCSE or Tusla where a school is directed to admit a child. Where the NCSE or Tusla, after consideration of any representations, remains of the opinion that the designation is necessary, it shall confirm the direction in writing to the board. A board shall comply with such a direction. It is my intention to commence section 67 once this legislation is enacted. This will provide an important new power to designate a school place for a child with special educational needs.

Section 9 provides for a minor consequential amendment to section 68 of the Education Act 1998 arising from the amendment to section 67. Section 10 provides for a minor consequential amendment to section 69 of the Education Act 1998 arising from the amendment to section 67. Section 11 provides for two amendments of the Education for Persons with Special Educational Needs Act 2004, EPSEN. A minor amendment is made to section 14(1)(c) to ensure consistency between the additional function of a school board being provided for under section 15 of the Education Act 1998 and similar functions of a school board under section 14 of the EPSEN Act 2004.

The second amendment provides for an additional function of the NCSE to co-ordinate and manage, having regard to section 37A and Part X of the Education (Admission to Schools) Act 1998, the admission of children to special classes and to special schools. This will allow the NCSE to play a greater role, where necessary, in supporting parents and schools with admission. To put this new provision into operation, the NCSE will need to engage with school authorities and parents. The provision may be particularly useful in particular locations and it should ease the burden on parents in terms of school admission.

Section 12 sets out details on the Short Title and the commencement of the Bill.

I look forward to working with colleagues in both Houses of the Oireachtas to progress this urgent legislation before the current Dáil term ends. With regard to possible amendment of the Bill, I ask Deputies to understand the very short timeframe that is available to us. It might not be possible to accept a number of amendments to the Bill. Where an amendment is accepted, it may be necessary for the officials to engage directly with Deputies to ensure its wording works in tandem with other provisions in the Education Act 1998 and other legislation. I commend the Bill to the House.

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