Richard Bruton (Dublin Bay North, Fine Gael) | Oireachtas source

I will.

Section 3 updates section 9 of the Education Act 1998, replacing the phrase "maximum accessibility", which was there as a provision of what the school should do to observe the Act. In this Bill, we are moving away from that phraseology to one that deals more comprehensively with admission policy.

Section 4 updates section 10 of the Act. A technical change, it requires a patron to operate in accordance with all regulations that a Minister makes under the Bill as opposed to just under section 33, which was a regulation section. This recognises that regulations can come from other parts of the Bill.

Section 5 updates section 15 of the Act and addresses the functions of the board to align with the wording of the Bill, which reads: "subject to this Act, publish the admission policy of the school". As regards that policy, the principle of inclusion shall be respected in addition to the principles already specified in the Act, for example, equality and respect for the rights of parents. We are also providing that the admission policy must be published whereas the Act allowed the school some discretion over the form in which it was published.

Section 5 also provides for the removal of the requirement on a board to publish a specific policy concerning admission to and participation in the school by students with disabilities or special needs. It tidies up matters. Similarly, it removes the reference to "relating to the expulsion and suspension of students", which is provided for under the code of behaviour elsewhere in the legislation.They are largely technical amendments. Section 6 mirrors section 4 but on this occasion it applies to the principal as opposed to the patron. In other words, the principal must observe regulations set by the Minister.

Section 7 amends section 29 of the Act, the whole appeals mechanism within the old Education Act 1998 and it remains section 29. Many of these changes relate to operational matters to seek to align the legislation with practice and procedures as they have been developed over the years, to increase the efficiency of the processes. However, there are several changes which relate to policy matters and these include: setting the cumulative number of days on suspension that have to elapse before an appeal can be lodged at 20 days and clarifying that an appeal against a decision to suspend, expel or refuse to admit a child that is not due to oversubscription is an appeal de novo. If the refusal is not due to oversubscription, there is a full hearing of the matters by an appeals committee based on the evidence and materials properly available to the committee. By contrast, if the refusal has to do with oversubscription it is described as an appeal on the record where the evidence and materials properly relied on by the appellate body are the same as those which were before the first instance body of the school. The next item provides that procedures for appeals shall be determined by the Minister including timeframes for appeals. The next element provides for an appeals committee to issue a preliminary decision, in the case where it is not due to oversubscription, giving people a breathing space in which to respond to that before a final decision. In the case where an appeal is made where oversubscription is the issue, the applicant must have requested the board of management to review the decision before going on to an appeal. That is a change in procedure. There is also a provision for a fast track for appeals against a decision to refuse enrolment where a school has places available but for some reason is refusing to offer a place contrary to one of the most fundamental provisions of the admissions Bill. In other words, the Bill provides that every child has to be admitted. That is the general presumption. If there is a place and a child is being refused an appeal can be fast-tracked. That is to ensure there is a quick response should a child need it.

The other element of the appeals process is that it introduces compellability such that where an appeal is allowed the school must readmit the student or adjust the ranking of the student on the waiting list as applicable. There is that power to require a school to make those changes.

We are removing a layer that was in the section 29 appeals, which required the education and training board, ETB, to have had an appeal before it was heard. There had to be a first instance appeal in the ETB before it went on to a section 29 appeal in the Department. That was seen to be a layer too many.

Section 8 is the section under which the Minister, on the advice of the National Council for Special Education, NCSE, can compel a school to open a special class within a mainstream school. There are several steps in this process, the NCSE must identify the need for such provision within the area, the Minister has a chance to review that case and the exercise of power by the Minister is preceded by several steps that allow engagement between the NCSE, the board of management and the patron of the school. This is to allow people make comments, for those to be considered at different levels and there is also a provision that if agreement is not reached on property arrangements – the Minister would normally be providing supports to the school to open the unit – the Minister may refer the matter to arbitration in accordance with the Arbitration Act 2010. If there is a question of whether the Minister is making adequate provision to allow the school to open this special unit which is being required that can be arbitrated on. The power is required to ensure that where there is a gap in provision for the education of children with special needs as identified by the NCSE and no school is willing to make such a provision available, the gap can be addressed effectively by issuing a direction by the Minister to the school. As a note for information in that context, in 2011 there were 548 such units, there are now 1,304. They are expanding very rapidly. While we are putting in this provision that is not to say that the majority of schools are resisting the opening of special units. That would not be the case. We see quite a degree of desire to open such units. There can be areas where there are difficulties. This power is something that the Lower House believed was important. It complements other powers later in the Bill.

Section 9 is the main part of the Bill, the admission to schools in the Education Act 1998. It provides for the inclusion of several sections in the 1998 Act, from sections 60 to 70. Section 61 includes the provision for single sex and certain denominational schools to reflect in their admission policy the exemption applicable to such schools under equality legislation. It requires the admission policy of a school to include an admission statement confirming that the school shall not discriminate in its admission of a student to the school on the following grounds: gender, civil status, family status, sexual orientation, religion, disability, race, Traveller community ground and special educational needs of the student or of the person who has applied on behalf of the student. This is the general provision of non-discrimination in the admission policy.

Section 62 deals with the drawing up of the admission policy and sets out mandatory elements that must be contained in the policy, they include that it must set out the characteristic spirit of the school, include an admission statement, provide details of the school's arrangements for students who do not wish to attend religious instruction, provide that the school shall enrol each student seeking admission, other than where the school is oversubscribed, where the parent of a student fails to confirm in writing that the code of behaviour of the school is acceptable to them, and that they should make all reasonable efforts to ensure compliance with such a code by the student or in accordance with the relevant exemptions in the Equal Status Act 2004 or in the case of a student seeking admission to a special school or a special class in a school where the student does not have the category of special educational need specified by the Minister in respect of the special school or class. Sometimes we open a special class that seeks to cater for a particular profile of disability and this provision allows that such a unit would not have to accept a child that did not have those specifications. For example, if we want to have a special unit for children on the autistic spectrum, that unit cannot accept children who have other special needs but not of that type. We have made sure that it is the Minister, not the school, who decides what is the specification, requirement or competence of that unit. If we set up an autistic spectrum disorder, ASD, unit we do not want it filled with children with a different type of need and others not getting the special support for which it was designed.

The policy must also set out the selection criteria that will apply where the school is oversubscribed. It provides that schools shall not consider or take into account any of the following when deciding on the application for admission: prior attendance at a preschool, payment of fees, the student's academic ability, the occupation or status of the parents, a requirement that the student, or his or her parents, attend an interview - with an exception for admission to a residential placement in a boarding school or to a post-leaving certificate, PLC, college or further education and training course - and the date on which an application for admission was received by the school.Effectively, this bans the use of waiting lists, application fees, academic tests, interviews and so on.

In addition, the policy must set out the procedures for admission of students after the commencement of the school year and to classes or years other than the school's intake group. It must include a statement that no application fees or contributions can be requested as part of the admission process, except in limited circumstances set out in the new section 64, which I shall outline shortly.

Under the Bill, a new section 63 sets out the requirement for schools to publish an annual admission notice. This notice must set out the dates on which the school shall commence and cease accepting applications for admission to the intake group or to any special class, and the date by which applicants will be notified of the decision on their application and the date by which they shall confirm acceptance.  It provides that different dates may be set for special classes and for residential places in boarding schools.

The annual admission notice must also set out the number of places being made available in the intake group and special classes.  In the case of a boarding school, the number of residential and non-residential places must be set out.  In circumstances where the school or special class was oversubscribed in the previous school year, the notice must contain details of the number of applications received in the previous year and the number of offers made under each of the selection criteria.

Section 64 prohibits the charging of fees or seeking payment or contributions in relation to an application for admission to a school or for the admission or continued enrolment of a student in a school. Exceptions are provided in the case of fees charged by schools known as fee charging schools, fees charged by boarding schools for the boarding element and fees charged by schools for post-leaving certificate courses or for other further education and training courses.

A new section 65 clarifies the power of the Minister to make regulations in relation to the preparation, content, publication and review by schools of admission policies and the arrangements and procedures applicable to the admission of students to schools.  The section provides for regulations to be made on a range of matters such as the selection criteria that schools may be permitted to use; information that must be contained in the annual admission notice and the application form; the manner in which and period during which an admission policy must be published; documents and information that a school may not require an applicant to provide; timelines for the admission processes in schools; requirements that applicants must adhere to; and arrangements and procedures on places that become available after the admission process is completed, for applications that are made after the start of the school year or to classes or years other than the intake group.

A new section 66 provides for the Minister, where he or she considers that it is in the best interests of students in an area or in order to accommodate students in the case of a school closure, following consultation with the patrons and boards of the schools concerned, to direct two or more boards to co-operate with each other in relation to their admission processes. This measure has been fruitful in some cases.

The new section 67 provides for the National Council for Special Education, NCSE, to designate a school in the case of a child who has no school place for reasons related to their special educational needs and for the Child and Family Agency to designate a school in the case of a child, other than a child to whom an NCSE designation may apply, who has no school place. This will give the NCSE two powers - to designate a school to take a child who has no place and, the much more restrictive process through the Minister, to require a school to open a special unit if a clear need is established. This section also provides for the Minister to establish an appeals committee to deal with appeals from schools in relation to designations by either the NCSE or the Child and Family Agency. Under the section the Minister may, following a consultation with the relevant stakeholders, determine procedures to be followed by appeals committees and the time limits applicable to such appeals.

A new section 68 enables a patron, following issue of a notice and consideration of any representations received in relation to same, to issue a direction to a board where he or she is of the opinion that: the board has failed to prepare and publish an admission policy; the admission policy of the school does not comply with the Education Act; students are not being admitted to the school in accordance with the Education Act or the admission policy of the school; the board has not complied with section 64 which bans the charging of fees or the board has not complied with a direction to it on a section 29 appeal, co-operation with other schools or a designation by the NCSE or the Child and Family Agency. These are important elements. If the board fails to comply with the direction the patron may, following issuance of a further notice and consideration of any representations received on same, and subject to the consent of the Minister, appoint an independent person to carry out the direction.

The new section 69 enables the Minister, following issue of a notice and consideration of any representations received in relation to same, to nominate an authorised person to prepare a report where the Minister is of the opinion that the board has failed to prepare and publish an admission policy; the admission policy of the school does not comply with the Education Act; students are not being admitted to the school in accordance with the Education Act or the admission policy of the school; and the board has not complied with section 64, which bans the charging of fees or the board has not complied with a direction to it in relation to a section 29 appeal, or with a designation by the NCSE or the Child and Family Agency. Upon consideration of the report, the Minister may issue a direction to a board which shall set out the remedial action to be taken by the board. There is a long-stop power of the Minister to ensure the provisions of this legislation are fully complied with.

The new section 70 enables the Minister to request a patron to direct a board to comply with a direction made by the Minister under section 69, where following issuance of a notice to the patron and the board and consideration of any representations received, the Minister is of the opinion that the board has failed to comply with the direction. Where the patron is of the opinion that the board subsequently fails to comply with its direction, the patron shall, following issuance of a further notice and consideration of any representations received in relation to same, and subject to the consent of the Minister, appoint an independent person to carry out the direction. There are a number of loops in there, but it recognises the position of patrons within our system.

Section 10 amends section 23 of the Education (Welfare) Act 2000 to require a board to publish the school’s code of behaviour. Section 26 of the Education (Welfare) Act currently provides that the Child and Family Agency may take an appeal under section 29 of the Education Act against a decision of a school to permanently exclude a student from a school or to refuse an enrolment of a student. To avoid a conflict of interest due to the new role of the agency under this Bill in relation to designating a school for a child without any school place, section 8 amends section 26 of the Education (Welfare) Act to provide that the Child and Family Agency may appoint a person independent of the agency to undertake this role in respect of the taking of section 29 appeals. This would protect the independence of the appeal process.

Section 11 amends the Equal Status Act 2000 to remove, in the case of recognised denominational primary schools, the existing provisions that permit such schools to use religion as a selection criterion in school admissions. It also provides that a recognised denominational primary school does not discriminate where it admits as a priority a student from a minority religion who is seeking admission to a school that provides religious instruction or religious education that is the same or similar to the religious ethos of the student concerned. These changes apply only in the case of oversubscribed primary schools, which are predominantly located in large urban areas. Given that only 20% of schools are oversubscribed, it means that in the vast majority of the State, no real impact will be felt as a result of these changes. During discussion on the Bill we had a consultation where we issued a number of options for consideration. No consensus emerged from that consultation process. I reflected on the issue and I have developed this formula, which has support in the Lower House. The idea behind the provision is that we are trying to be fair and respect the wishes of three groups: Catholic parents, parents of minority religions and parents of children who do not subscribe to any religion.At the moment, all denominational schools, which currently account for 19 of every 20 schools, can use religion as a selection criterion where they are oversubscribed. This was unfair because it led to children living a considerable distance from a school being selected ahead of children living in the local area. It also created pressure to baptise children. We have removed the use of religion as a selection criterion from 19 in every 20 schools or 95% of schools, namely, all non-denominational, multi-denominational and Catholic schools. We have, however, protected the right to use religion as a selection criterion in cases involving children of a minority religion who will only have access to one in every 20 schools. These schools will be able to continue to give priority to a child of the minority religion who wishes to be admitted. Failure to provide for this would effectively result in Protestant schools disappearing as a distinctive cohort because they would be swamped by parents of a different ethos. On the other hand, Catholics are well provided for and have a considerable range of choice available to them because the Catholic Church is the patron of 18 of every 20 schools. It should be noted, however, that most Catholic schools go out of their way to ensure that children of all persuasions and religious denominations are welcomed and supported in their school. The use of religion as a criterion needs to be removed, which was the thinking behind this provision.

With the introduction of this provision, I have sought to be fair to all parents, while recognising the right of all schools to have their distinctive ethos. As a result of these changes, children of minority religions will be able to access schools of their own religion, Catholic families will continue to be able to enrol children in 90% of schools and non-denominational families will find that for more than 95% of primary schools they will be treated the same as all other families in their primary school.

Section 12 is a standard provision providing for the repeal of a number of existing legislative provisions. Section 13 is a standard provision providing for the Short Title, collective citations of the Bill and the further commencement of the Bill. I apologise for my lengthy contribution. To summarise, the purpose of the Bill is to make admission fairer, more transparent and simpler. I commend it to the House and look forward to hearing the views of Senators.