Rónán Mullen (Independent) | Oireachtas source

I welcome the Minister of State to the House. I do not think I did so earlier. The background to this issue is that special classes in mainstream schools combine the benefit of a much-reduced teacher: pupil ratio and special needs assistant, SNA, support with opportunities for children to engage with inclusive learning practices during the school day in mainstream classes with their friends and peers. I acknowledge that if we look at the barometer of progress in this area, the National Council for Special Education, NCSE, list of special classes in mainstream schools for 2022-23, we can see just over 2,500 special classes in 1,266 primary and post-primary schools. More than 14,000 children with additional learning needs are enrolled in these classes. This compares with 511 special classes listed in mainstream schools. I acknowledge that there is significant and welcome State investment in special class provision in mainstream schools. It is much needed and it is happening.

I say this because at the back of this legislation lurks the question of resources. It is all very well to impose obligations on people to co-operate. None of this is possible, however, unless the resources are available. Enhanced funding is required to adapt existing classrooms to meet the needs of children attending a special class. It cannot be assumed at any stage of this process that any available space is suitable, for example. In passing, I will mention that the initial funding for such adaptation must be easily accessible, substantial and co-ordinated. The current allocation of €6,500 for such initial adaptation is inadequate in many cases.

We cannot have some of our most vulnerable children in unsuitable prefab accommodation while delayed tendering, planning and other issues hold up proper provision. We are saying here that special classes require more than buildings. The need for support and training must extend beyond the initial set-up. It is key that there would be multidisciplinary support available for children in these classes, such as speech and language, SLT, support, occupational therapy, OC, and access to educational psychology. All these elements are of paramount importance and they must go beyond tokenism.

Therefore, it would be blinkered to view the amendment of section 37A proposed in this legislation outside those factors. Progress on the concerns I mentioned around resourcing and seeing everything involved in this context would greatly negate the need for such provision. We must build on the spirit of co-operation that is evident in the vast majority of schools. My amendments, then, are, ultimately, all the same, in the sense that they relate to the Department attempting, it seems, to have two processes work in tandem regarding the provision of special classes in schools. The first is the requirement for patrons and boards to co-operate with the NCSE in respect of the provision of special classes. The second is to ensure that patrons and boards comply with a new, shortened version of what is termed a section 37A process, which is the formal process by which a school can be required to open a special class.

I am happy with both processes working in tandem up to a point. This is what will occur in the vast majority of situations that arise. However, what happens if there is apparent confusion? The proposed legislation requires patrons to "ensure cooperation by" a board with the NCSE’s functions in relation to the provision of special education "by the provision and operation of [special] classes when requested to do so by the [NCSE]”. Is this about the section 37A process or is it not? That is now streamlined and that is welcome. It involves a report from the NCSE, a notice in writing from the Minister, a draft direction and then a direction. Therefore, a process is intended. It starts with a report by the NCSE and it ends with a direction by the Minister. Everybody is then required to comply. At the same time, however, if the legislation is envisaging or providing that there shall be co-operation when that is requested by the NCSE, is that saying that if the section 37A process is not involved there is then a legal obligation to comply with something much blunter?

This seems to be introducing confusion and contradiction into the law. There is a process in place. There was worry about how the process was working, so it has been streamlined. At the same time, however, there is this vague legal obligation to ensure co-operation with a request from the NCSE. The only way in which a patron can ensure the co-operation of a board is to dissolve it, pursuant to section 16 of the Education Act 1998. I contend that it would not be appropriate for a patron to require a board to provide a special class when requested by the NCSE to do so unless that request is grounded in a section 37A process. If it is to be grounded at all times in the section 37A process, why does this legislation not say so? My amendments seek, and have sought, because three of them were already dealt with before I came in, three minutes late, the same objective because it is essentially the same amendment across different sections. It is simply stating that what we are talking about here at all times is a section 37A process. If this is what is meant in the legislation, then my amendments need not be controversial.

I must point out to the Minister of State the context here of putting an obligation on a patron to require a board to provide a special class when requested simply by the NCSE to do so and not on foot of a direction from the Minister. We must remember the circumstances involved and that a patron only gets to approve a board when it is put together first. Thereafter, however, the only sanction available to a patron is to dissolve the board, for which the approval of the Minister is needed. Therefore, it should not be the case that the ultimate sanction available to the patron, namely, that of dissolving a board, should be required to be triggered simply because the NCSE does not regard a school as co-operating sufficiently. That would be bypassing the entire process. Where differences of opinion exist between a board and the NCSE, section 37A is the required process to be engaged in. This legislation should not undermine that process in any way.

I do not think the patrons have a problem with the obligation of compliance being put on them. It is already there in section 37A. I would be happy if the Minister of State were willing to confirm on the record that in her view, patrons are co-operating with the process, because that is my understanding. Is it being suggested that they are not? Is being suggested that there is widespread non-compliance with section 37A by patrons or boards? If so, the law is there to ensure compliance. It is obligatory to comply with section 37A. Therefore, it is not understood, and I do not understand, why this kind of parallel obligation is being created to ensure co-operation by boards with the NCSE in a way that seems to suggest that we are not talking about section 37A at all. This is horribly vague. What does "co-operation" mean? This is another question. Are we in the situation here where politics is informing the drafting of legislation and that we are choosing the sloppy over the specific to make a political point or to be seen to be doing something? That is not what legislation is about. Legislation is about placing precise obligations on people, which if not followed, bring a sanction. This is what I thought section 37A was all about.

I repeat my request to the Minister of State to confirm if it is her view that patrons are co-operating with the existing process. I also ask her to give me a direct answer regarding whether this legislation, in her view or as a matter of objective fact, envisages that a patron or board could come under an obligation outside of the section 37A process under what is proposed in these sections? I ask because I do not understand why this is happening, if we have a process that is in the course of being streamlined in this legislation. On those two questions, is the Minister of State happy to confirm that patrons are co-operating with the process? Does this legislation envisage something outside of the section 37A process under which a patron or board of management could be in non-compliance with the law? If so, how is that reasonable, given that the only possible sanction a patron has is, with the support of the Minister, to seek the dissolution of a board under section 16 of the Education Act?

Co-operation should be required by the patron and the school with the National Council for Special Education, NCSE, in respect of its functions, particularly as regards the provision of special classes, but there is an issue with requiring a patron to ensure that a board will provide a special class simply upon request by the NCSE outside of the section 37A process. First, this bypasses a process that is structured for a particular reason. Second, a patron has no power other than the dissolution of a board.

If the words “pursuant to section 37A of the Act of 1998” are added to the text in the sections as I have suggested in my amendments, patrons and schools will still be required to co-operate with the NCSE on special education, in particular special classes, but the proposed shortened version of section 37A will be the one that is required to be followed in cases where more serious differences arise between the school and the NCSE on the provision of a special class.

Will the Minister of State confirm that patrons are co-operating? Is there some process outside of section 37A under which patrons and boards of management could find themselves outside of the law? If so, how is it fair, given a patron's absence of power to ensure compliance other than seeking the dissolution of the board? Is what this provision is really meant to do is to give some va-va-voom to the operation of section 37A by being specific about the obligation on patrons to be in compliance under the Education Act? No one has a problem with that, but we should specify that we are discussing section 37A.