Brian Lenihan Jnr (Dublin West, Fianna Fail)

The amendments to section 1 have been ruled out of order but the substance of Senator Cox's contribution reflects their intention. The Minister for Education and Science, Deputy Noel Dempsey, has been penalised in this discussion for being first out of the traps. He has produced the legislation he promised and he was very open to accepting amendments. The limit for such amendments is now unfortunately approaching because the Minister has to consider the interdepartmental allocation of responsibilities in this matter. The Supreme Court's judgment in the Sinnott case was very clear-cut on the matter of the right of children to receive free primary education and that this right ceased at 18 years of age. The Bill does contain some rights-based elements for those over 18 but that judgment puts a definite colour on how the Minister must relate to his colleague regarding the provision of services in this area.

That is not to say that a person with special educational needs will miss out upon reaching the age of 18. Section 15 expressly provides that regard must be had in the planning and reviewing of education plans to the provision that must be made to allow the child to continue his or her education beyond that age. It also provides that where a child will reach 18 in the following year, the council established under the legislation must assess the extent to which goals in previous plans met the child's special needs, the reasons for any failure in this respect and the effect this had on the child. The educational plan for that year must address any such effects. These measures can continue after the age of 18 and this will aid the continuation of services when the child becomes an adult and begins to enjoy rights under the proposed disability Bill.

The forthcoming disability legislation will deal more specifically with the delivery of services including educational services to adults with disabilities. It will ensure that persons aged over 18 with educational disabilities have access to a further assessment of their needs, where relevant, and an individual service statement. The Minister has included a continuity provision in the Education for Persons with Special Educational Needs Bill 2003 but subsequent to the Sinnott case he must have some basic agreement with the other Departments on the allocation of responsibilities. The Minister has not defaulted at all in that he has brought this legislation through the Dáil and is now presenting it for the consideration of this House. His Department has worked closely with officials in the Department of Justice, Equality and Law Reform to ensure consistency and a complimentary approach between this Bill and the disability Bill that will emerge from that Department.

There is no disagreement in principle between the Minister and what Senators have said. The difference is simply one of approach in deciding how best to address the needs of those with disabilities. The purpose of this Bill is to provide a statutory framework within which the special educational needs of children with disabilities can be guaranteed as a right enforceable by law. Together with the introduction of an advocacy service for both children and adults under the Comhairle (Amendment) Bill sponsored by the Minister for Social and Family Affairs, this Bill and the disability Bill will offer a complete and seamless service, albeit with different regimes, for both children and adults.

In terms of providing that seamless service, the Minister through section 15 has ensured that there is at least joined up thinking coming from the Department of Education and Science regarding the establishment of that basic scaffolding of rights for all persons with special educational needs. The Minister is sympathetic to the points made by Senators and he discussed this issue with me before the commencement of Committee Stage in this House. Section 15 of this Bill and the forthcoming disability Bill address the needs of those with special educational needs. A careful examination of section 15 shows that this Bill does not exclude those over 18 years of age from its provisions. The Bill represents a rights-based approach at least in continuity and the provision of services consequent upon that continuity. That is as far as the Minister can go on that matter. The amendments have been ruled out of order because the scheme and purpose of the legislation is clear regarding the definition of the child contained in the interpretation section.