Jan O'Sullivan (Limerick East, Labour)
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Question 41: To ask the Minister for Education and Science the action she will take to prevent schools from cherry picking students who are more likely to get good examination results and discouraging students who have special learning difficulties; and if she will make a statement on the matter. [40277/06]

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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I have expressed a view on a number of occasions that some second-level schools do not appear to be doing as much as they could to welcome students with special needs. I made a particular point of raising this when I attended the annual conferences of the education partners over the course of the year.

It is the general position that a school cannot turn away a child solely because he or she has special needs. A student may be refused enrolment on the basis of criteria in the school's published enrolment policy, such as those that relate to the school's catchment area, preference given to siblings of existing students etc., but the policy must be legal and cannot involve discrimination against special needs students.

While the legal position on non-discrimination in enrolment policies is strong, some schools seem not to be officially refusing to take students with special needs but rather encouraging parents to apply elsewhere on the basis that another school would better meet their needs.

I am concerned about this practice, particularly given all the extra investment that has been provided by this Government to ensure that all schools can cater for students with special needs. In the current school year, more than 1,850 whole-time equivalent teachers and more than 1,350 special needs assistants have been allocated to second level schools to cater for pupils with special educational needs. This represents an increase of more than 200 teaching posts and more than 260 SNA posts on the previous school year.

Of course, as well as the extra resources that have been provided in recent years, the process for accessing special needs supports has also been improved dramatically by the establishment of the National Council for Special Education and its teams of local organisers. Schools now have a specific person to whom they can apply for supports based on the professionally assessed needs of the individual student. All schools should see that there is now a strong system in place to ensure that special needs students get the additional resources they need. It is necessary, however, for schools to be willing to be proactive and seek extra support from their local SENO.

I also want all parents to be aware of both their legal rights and the fact that all schools have access to special needs supports, and will be asking the NCSE to assist in this regard.

With regard to parents who feel that their child has unjustly been refused a school place, they may appeal the school's decision to the Secretary General of the Department under section 29 of the Education Act 1998. Such appeals are dealt with within 30 days of their receipt and, where an appeal is upheld, the Secretary General is empowered to direct the school to enrol the student.

With the improvements that have been put in place in recent years, students with special needs should not only be welcome in all schools but should be embraced as part of an inclusive and caring school community.

Jan O'Sullivan (Limerick East, Labour)
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I do not doubt the Minister's concern in this matter and her statements are welcome but she is the Minister for Education and Science — will she take action? Will the Minister introduce regulations under section 33 of the Education Act, which allow for regulations on the entrance policies of schools? Is the Minister willing to stand by and watch this apartheid take place in the school system? It has been described in The Irish Times today as apartheid by the former principal of a comprehensive school where 10% of students have special educational needs while other schools in the area have no special needs children. What will the Minister do other than telling people what she thinks about it?

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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The Deputy heard me highlighting this at all of the conferences this year and ensuring schools adopted inclusive enrolment policies, which is the best way to go.

Much of the evidence we have is anecdotal because the parents are not being refused but are being referred in a positive way to another school. For that reason they do not make a section 29 appeal. I encourage parents to do that, however, because it gives us the evidence on schools that are operating segregated enrolment policies. It would be open to regulation but schools must take children with special needs. As a result of the lack of evidence under section 29 appeals, even though there have been 88 appeals so far this year, we are carrying out an audit of identified areas to see the effect on the ground that will give me real information on numbers.

The Deputy referred to Mr. Derek West, the retired principal of Newpark Comprehensive School, who is correct in stating the numbers at the school. He, like some other principals in the country, is a victim of the success of his school in welcoming students and providing top class facilities that are well supported by the Department of Education and Science. Once a school gets a good name for dealing with children with special needs, the parents opt to send their children there. It is the parents on the ground who are making the decision and that ends up letting other schools off the hook.

There are a number of issues to take into consideration. The schools, however, have heard my views and the parents who decide to follow through can give the evidence we need and the audit will show me that evidence. After that I will be in a better position to decide what rules and regulations must be implemented.

Jan O'Sullivan (Limerick East, Labour)
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Part of the problem, as the article points out in The Irish Times, is that under section 29, more children with special needs attend Newpark Comprehensive School because they have taken section 29 cases, increasing the numbers there.

When the Minister amends section 29, which she has said she will do, will she insert regulations to ensure there is a balance in a particular area? It states in the article that Newpark wanted to keep its current balance and was trying to reduce the number of special needs children as a result, because it had taken in more than its fair share. When it tried to do so, section 29 appeals were used against it. Does the Minister agree there is a need to change the legislation or make regulations to address this serious issue which divides the education system?

If this is allowed to continue, it will be a very serious matter. The Minister's lecturing will not change things, unfortunately. It might do so if she was a teacher in a school but she is the Minister with responsibility for education. Schools will not change their ways perhaps unless they are forced to do so by either regulation or legislation.

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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It is the case that parents are choosing to send their children to the school with the good name and good record. I have some anecdotal evidence in my area of where some parents are paying to send their child of average or good academic ability to a fee-paying school while choosing to send their child with a learning difficulty to a different but non-fee-paying school. Those are the kind of choices for which it is very difficult to legislate or create regulations.

Of the 88 appeals with regard to refusals of post-primary schools to enrol pupils this year, 30 were upheld. In other words, the parent won in the case of 30 appeals.

Jan O'Sullivan (Limerick East, Labour)
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That is not solving the problem.

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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I ask the Deputy to listen. Three cases were resolved at facilitation and eight were resolved locally. Twenty-two appeals were withdrawn and 25 went to a hearing and were not upheld. Many of them were sorted out at local level.

The Deputy is correct that the second school which does not admit the child is the school that suffers under section 29 of the Act. This is all the more reason the parent in the first instance when their child has been turned down by a school needs to take the section 29 appeal against that school and not the one which is already very inclusive and does not take the child.

Olwyn Enright (Laois-Offaly, Fine Gael)
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They must be formally turned down.

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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Yes, they have to have been turned down.