Ulick Burke (Fine Gael)

I welcome the Minister of State, Deputy Brian Lenihan. Senators are presented with Bills on various topics throughout the parliamentary session. It goes without saying that all legislation is important because of its impact on people's lives. However, this Bill is of special and critical importance because it impacts on children and their parents, schools, teachers and families and gives our deliberations a keen edge. I am pleased the House finally has the opportunity to examine in detail the provisions of the education for persons with special needs Bill 2003. It is of great significance to thousands of people around the country.

I agree with the Minister of State that the Bill has been extensively scrutinised in the other House, but it does not take a true rights-based approach to the individuals at the centre of the educational process. Instead it retains the existing normative educational structures and attempts to graft on additional structures and processes in an attempt to address the educational needs of people with disabilities and special needs.

The Bill is shackled with overbearing resource constraints, which were highlighted repeatedly in the Minister of State's speech, and was formulated on the premise that efficiency must be achieved through forcing people with disabilities to fit existing or somewhat modified structures and processes instead of designing them from the individual out. Moreover, these additional structures have been designed in a manner which will inevitably lead to unnecessary bureaucracy and inertia in service delivery, or worse, provide cover for officials to hide behind when they cannot deliver. If this Bill is to achieve the objectives set out in its Preamble, it will require a radical rethink of how we approach educational processes in this State. We have an opportunity to do so and we should take it.

In the 1990s, the report of the Commission on the Status of People with Disabilities found that all children, including those with disabilities, have a right to a free and appropriate education in the least restrictive environment possible. The commission found that every individual has an equal right to educational provision and that every child is capable of benefiting from education. This latter point is critical and it is clear the State is responsible for providing the assistance required by children with special educational needs to enable them to reach their full potential. Anything less that this is a failure which amounts to a serious negation of one of the most pressing and primary obligations.

Unfortunately, this is an obligation which has not been met. In every school in the country there are children who require psychological evaluation or special educational resources. However, these services are not being delivered. This comes down to the simple matter of prioritising resources where they can be of most assistance. Unfortunately, children with special educational needs must get used to being low down the Government's list of priorities. Why should the Minister for Education and Science and the Minister for Health and Children require the consent of the Minister for Finance to provide funds for their allocated budgets for the implementation of such educational plans? Why should the Minister for Finance have any hand, act or part in the formulation of policies to do with the educational needs of people with disabilities?

These same provisions are not to be seen in the Education Act 1998. The Act requires that the Minister, in carrying out his or her functions, shall have regard to the resources available. Is it not discriminatory in the extreme to impose a more draconian and interfering requirement of fiscal responsibility on persons with disabilities than their peers? How does it fit with the stated objective in the Preamble of the Bill to provide that people with disabilities shall have the same rights to avail of and benefit from appropriate education as their peers?

Unless the resources are put in place, all the best legislation will not ensure that those with disabilities can fully participate in our education system. It is difficult not to be sceptical that this legislation will provide the type of appropriate and resource services which are so badly needed.

Recently Fine Gael conducted a survey of more than 400 schools around the country, approximately one tenth of the total school network, and found the average waiting time for a child to receive a psychological assessment through the National Educational Psychological Service was 6.5 months. With more than a quarter of the children waiting more than nine months, in some cases students would have to wait up to five years to get an assessment. Can the Minister of State guarantee this will not continue in the future? The guarantee has been written on paper but while the resources are not available, how can the Minister of State stand over this guarantee? The record stands. A psychological assessment can be critical in determining the type of specialised assistance a child may need to reach his or her educational potential. Without an assessment it can be difficult to ascertain exactly what type of assistance a child may need to progress at school.

Given the long waiting times, the educational potential of so many children is being squandered or hindered. The waiting time does not stop there. Since February 2003, the Minister for Education and Science has received more than 8,000 applications for special education resources in his Department. However, the vast majority of these, more than 88%, have not been sanctioned, leaving children who are in need of some form of assistance at school without the help they require.

This failure indicates the critical resources and administrative bottleneck the Minister for Education and Science has been unable or unwilling to tackle in a real way. The difficulty we face today is that the best legislation in the world, if expected to function without resources, will not provide the support students with special educational needs require. Legislation needs the support from Government that comes with both the delivery of resources and the political will to clear the bottleneck that obstructs the critical services. A comment by the National Federation of Voluntary Bodies clearly indicates that the potential impact of the proposed legislation will be significantly diminished unless there is a legislative imperative associated with the appropriate provisions of support and resources. That clearly outlines its fear because of the record of the past. It is abundantly clear the Minister for Education and Science has neither sanctioned the resources nor cleared the bottleneck.

I welcome the change in the Title of the Bill. Many of those who came before the Joint Committee on Education and Children had difficulty with the term "educational disability". In particular, those with physical disabilities pointed out that they do not, per se, have an educational disability. The original Title, Education of Persons with Disabilities Bill, focused clearly on the negative. The amended Title, Education for Persons with Special Educational Needs Bill 2003, directs attention to the specific requirements of those with special needs. Instead of being concerned with meeting the requirements of any given disability, the amended Title shows the need to assist people with special needs, whether these needs change over time as people approach maturity or under any other circumstance. The needs of people with special educational requirements are open-ended and should be met at all stages within the education system. I acknowledge the work of Deputy Stanton who was instrumental in having the Title of the Bill changed, as the Minister of State acknowledged.

During earlier Dáil debates and scrutiny of this legislation, there was considerable concern at the definition of "disability" included in the Bill. My colleagues, Deputies Enright and Stanton, tabled amendments to define "disability" according to the Education Act 1998. That Act defines "disability" according to a number of criteria, one of which included a condition or malfunction whichresults in a person learning differently from a person without a condition or malfunction. Therefore, the 1998 Act gave a broad enough definition to allow for the inclusion of conditions such as ADD, ADHD, dyslexia and dyspraxia. We must ensure the definition proposed in the legislation cannot be used to restrict access to any service or assistance to those who need it.

The Fine Gael amendments were specifically designed to ensure that those needing help would get it, as well as the children who have conditions such as ADD, ADHD, dyslexia and so on. I am also concerned about the use of the word "enduring" as part of the definition of special educational needs. The Dyslexia Association of Ireland has a similar concern and said it was not convinced that dyslexia would qualify as an enduring physical, sensory, mental health or intellectual impairment in a court of law.

It may be the case that a child has a special educational requirement that may be pressing and for which assistance may be needed. However, if that requirement is not considered to be as a result of an enduring condition, to what assistance will the child be entitled? I am concerned that such a prescriptive definition of disability may not allow children to access services they may need from time to time during their education. When examining the Education for Persons with Special Educational Needs Bill 2003 it is clear the remit of this legislation applies only to those under the age of 18 years. For example, "child" means a person not more than 18 years of age. I am concerned about future students who, for whatever reason, may not complete second level education by the time they reach 18 years of age. It is conceivable that a child who has a special educational requirement may start school slightly later than his or her peers, or may progress at a slower pace through the school system. What protection will such a child be afforded if he or she does not finish full-time schooling before reaching 19 or 20 years of age?

The Government may say its long awaited disability Bill will provide protection for such a person. However, this is not good enough. Today we must examine the Education for Persons with Special Educational Needs Bill without the benefit of knowing what the forthcoming disability Bill will contain. The Government has continually promised to bring forward the disability Bill but has not acted on these promises. In April 2003, the Taoiseach made a commitment to publish the disability Bill as soon as possible, but last March the Tánaiste was unable to say when the Bill would be completed. Moreover, the Taoiseach's recent excuse that ongoing consultation was the reason for the delay in the publication of the disability Bill is not supported by members of the consultation group who say that is not the issue on hand. The Government has stalled long enough in bringing forward the disability Bill. The Bill must be published as a matter of urgency, particularly as the Bill before the House has no force for a person over the age of 18 years. Those over 18 years of age must have their rights vindicated through the disability Bill and must have their educational needs fully met.

Dealing with support services or State agencies on behalf of one's child can be a daunting task for many parents. As representatives we are in frequent contact with our constituents who all know that bureaucracy and administration can deter people from applying for assistance to which they are entitled in many cases. In these instances we should ensure parents have the support of an advocate who can advise them of the assistance available for their child. Furthermore, in cases where parents feel intimidated by officialdom, such an advocacy service should be able to liaise with the relevant support services or agencies and make a case on behalf of the child in question. This type of support service is badly needed and should have been incorporated in the Bill.

The Education for Persons with Special Educational Needs Bill 2003 also puts considerable extra pressures on school principals. I am calling on the Minister for Education and Science, Deputy Noel Dempsey, to outline in detail the supports not only in terms of finance, but also of training and administration and administrative assistance that will be made available to both primary and secondary schools in the implementation of the Bill. Part of a letter I received from a school principal in County Galway states:

Ulick, what can a principal do when teachers come in tears to you because they perceive themselves as failing the Special Needs child? I know these teachers are doing an excellent job, but I can acknowledge their perception — they have absolutely no training for dealing with children who are Mildly Handicapped, Downs Syndrome or Autistic. Parents are very demanding and the current Special Needs situation in Primary schools in abysmal. In fact any courses available to the general body of teachers in most of the Special Needs areas have been provided not by the DES but by individual teachers who have up skilled at their own expense — and they feel pretty foolish listening to the current Minister's comments on our teaching as being in the Dark Ages. What has he provided to improve these areas?

That comment from a school principal states the reality.

Last October the INTO stated that this legislation would not be worth the paper it is written on in the absence of a Government guarantee of resources to implement it. In addition, the National Association of Principals and Deputy Principals stated that children with special needs in second level schools were not being given the resources they require now, even before the legislation is to be considered in the Seanad. The Minister for Education and Science must ensure that meeting the requirements of special needs students is the core part of teacher training programmes running today and provide all necessary assistance and upskilling to working teachers who may require further training in this area.

I wish to refer to the role of parents in the education of their children and welcome the Minister's guarantee of their involvement. It is important that parents are kept involved at every stage of the decision making process and can make representations. The Education for Persons with Special Educational Needs Bill 2003 established a National Council for Special Education consisting of a chairperson and 12 ordinary members appointed by the Minister. I consider that it is of paramount importance that parents and their representatives should have a strong voice on that council. Parents are battling day in day out to access the services their children need and their views and concerns must be represented on this council. I am concerned also that by choosing the route of arbitration or mediation, a parent or child's right of access to the courts will not be diminished.

It would be preferable to think that the legislation will be resourced properly and with all due care and respect for those with special educational requirements, which would negate the need for legal action in so many cases. However, with the track record of the Government, I have nothing other than continued concern for the children with special educational needs. I welcome the Second Stage debate and I will table amendments to the Bill at a later stage.