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Education Rights and Autism

This section outlines education rights with relation to autism and the legislation which upholds them.

What is the Education for Persons with Special Educational Needs Act 2004?

The EPSEN Act 2004 sets out a detailed framework for educating pupils with special educational needs (SENs) This framework includes the education rights of  pupils on the autism spectrum. 

Special educational needs in the Act are defined as:

 “. . . a restriction in the capacity of the person to participate in and benefit from education on account of an enduring physical, sensory, mental health or learning disability, or any other condition which results in a person learning differently from a person without that condition.”

The Act’s key message is that the State, wherever possible, has a responsibility to educate children with SENs in an inclusive setting, alongside their peers who otherwise do not have SENs.

The two exceptions to this are: 

  • if an assessment finds that this would not be in the autistic pupil’s interests (i.e., if a mainstream school was unable to accommodate particularly complex needs), or;
  • if an assessment finds that this would not be in the autistic pupil’s classmates’ interests (i.e., if an autistic pupil was exhibiting exceptionally challenging behaviour that impacted on other pupils’ education).

It is important to note that inclusive education and inclusive settings need to be achieved on a whole-of-school level. This involves encouraging all staff working in a school to build on their professional knowledge of special educational needs and what best practices are there for engaging with their pupils who may have SENs.

Equally, every pupil attending a particular school should be able and encouraged to take part in the school community, whenever and however they wish. All obstacles to their full participation must be addressed by the school, directly and decisively. This especially relevant when it comes to the education rights and autism. Participation on a whole-school level is necessary to ensure an autism friendly environment. 

Duties of a school’s Board of Management and its key teaching staff

The Act also sets out the duties of a school’s Board of Management and its key teaching staff (i.e., resource teacher, SNA, principal) with regards to the continuum of supports available to an autistic pupil.

These supports include: 

  • the assessment of special educational needs, and;
  • the development and implementation of a personalised educational plan.

Only certain sections of the EPSEN Act have been implemented at this time of writing (April 2020), and not in its entirety.

Those sections which have been implemented include: 

  • the establishment of the NCSE, and;
  • the sections of the Act providing for an inclusive approach to the education of pupils with SENs. 

The parts of the Act that have not been implemented include:

  • the provisions relating to an individual right to assessments;
  • individual education plans, and;
  • the designation of schools.

The NCSE’s functions, as set out in the EPSEN Act include the following:

  • to publish information and guidance on best practices for providing special education to schools, parents, and the general public;
  • to make available to the parents of learners with SEN information regarding their entitlements and their children’s entitlements;
  • to ensure that the progress of learners with SEN is monitored and that it is reviewed at regular intervals;
  • to ensure that a continuum of special education provision is available as required in relation to each category of disability;
  • to advise the minister on any matter relating to the education of children and others with disabilities;
  • to conduct, commission and publish research on matters relevant to the functions of the Council.

When the EPSEN Act (2004) is fully implemented, the NCSE will have specific functions in relation to assessing learners, preparing individual education plans and co-ordinating education and health services. Education rights with relation to autism will be key to this and AsIAm continues to advocate on this. 

The HSE is currently responsible for providing health services to pre-school children and may provide speech and language therapy services. The NCSE is responsible for providing services to school-going children.

Appeals

The EPSEN Act intended to provide an alternative means of resolving disputes through the Special Education Appeals Board. Although the Board was established in 2006, it is not yet in operation. When it comes into effect, in the event where the education rights of a child on the autism spectrum are threatened, the board’s duties will involve: 

  • resolving disagreements between parents and NCSE if the Council refuses to arrange an assessment of a child, or to prepare an education plan;
  • having the power to direct the council to arrange the preparation of an assessment or of an education plan, and;
  • dismissing an appeal of the parents or principal, if it sees fit to do so. The EPSEN Act also provides for a process of mediation following the exhaustion of any rights of appeal under the legislation.

You can read more about the EPSEN Act in full on the Irish Statute Book’s website here:

http://www.irishstatutebook.ie/eli/2004/act/30/enacted/en/html

What is the Disability Act 2005?

Assessment of Needs 

This law, among other things, entitles people to a full and independent Assessment of Need, if they feel that they are living with a disability. This is one of the most processes in ensuring education rights with relation to autism. This Assessment will explore a person’s health needs. As part of the process, the Assessment will also determine which services may be needed to meet those needs. These needs may be met by clinical, educational, and or social services from the State. 

The Assessment is only open to children born after 1st June 2002.

An application for an Assessment can be made by a parent, legal guardian or personal advocate. A young person aged 16 or 17 years can apply for their own Assessment of Need. You can apply for an Assessment of Need by filling out an application form called the Application for Assessment of Need under Disability Act 2005. You can find a copy of this form at your Local Health Office, GP surgery, or online at the HSE’s website.

The Assessment itself is carried out by a multidisciplinary team of different healthcare professionals. It is not the same as a diagnostic assessment. Assessment Officers will oversee the process of writing the Assessment Report. Parents and legal guardians will often be encouraged to take part in their child’s assessment. The assessment process is usually short, but it will vary from person to person.

You will be presented with a Service Statement no later than one month after the Assessment Report is finished. A Service Statement will list the different health services and supports that your child will be provided for. You will receive your child’s Assessment Report and Service Statement at the same time.

The Statement will outline: 

  • the nature and extent of your child’s disability;
  • the health and education needs arising from the disability;
  • the appropriate services to meet those needs, and;
  • the period within which a review of the assessment should be carried out (this must be no later than a year from the date the assessment report is issued).

Grounds for a complaint include:

If you are unhappy with the process or feel that the Service Statement is mistaken, you can make a complaint to the HSE.

Grounds for a complaint include:

  • your child is found not to have a disability and you do not agree;
  • the assessment is not done so professionally;
  • an assessment has not began or finished within the agreed timeframes;
  • you believe that the Service Statement is inaccurate or incorrect, or;
  • the services in the Service Statement are not being delivered.

If you are unhappy with your complaint’s outcome, you can appeal to the independent Office of the Disability Appeals Officer. The Appeals Officer’s decision is final and may only be appealed to the High Court. 

You can get in touch with the Disability Appeals Officer by completing an appeals form from Gov.ie, and free-posting it to Office of the Disability Appeals Officer, FREEPOST, Block 1, Miesian Plaza, 50-58 Lower Baggot Street, Dublin 2, D02 XW14. You can also telephone 1850 211 583 or email appeal@odao.ie

Accessibility to Public Services

The Act also places a legal obligation on public services to provide accessible ways for people with disabilities to use them. This includes the supply of goods, as well as the facilities that house public services.

The exception however, lies in cases where such access would:

  • not be practicable;
  • not be justified by the cost involved, and;
  • cause unreasonable delay in making goods and services available to other people.

Complaints may be made to the public body that a person has a complaint with if it is considered that a public building or goods and services provided by that body are not accessible. 

The Act also deals with the extension of the National Disability Authority Act 1999 to set up an Authority within the National Disability Authority (NDA) to be known as the Centre for Excellence in Universal Design. This Centre will promote standards and principles of universal design in the education and training of designers (i.e., architects, town planners, transport providers, software developers, systems analysts, engineers, etc.) and promote public awareness in this area.

What is the Education (Admissions to Schools) Act 2018?

This law sets out clearer rules and a more structured process as to how to enroll in schools, at both primary and post-primary level. It is also to ensure that the admissions process is fairer for all children enrolling in a school, regardless of their level of needs and background.  This is important for the education rights of school-children on the autism spectrum because it grants the Minister of Education the power to compel schools to open a special class for SEN.  

The Minister must actively consult with the school’s Board of Management and the NCSE before doing so, however, to see if there is any significant demand from the local area to open one.

The consultation process will also involve parents’ associations within the local area.

Schools and their Boards of Management must cooperate more often together under the Act’s new rules. This is so that the level of demand for SENs can be met within a particular area.

Cooperation between schools’ Boards of Management may occur if:

  • a school is due to close, and the Minister feels that it is in the best interests of the pupils attending the school due to close;
  • the Minister feels, if it is in the best interests of the pupils in an area, that Boards of Management should cooperate with each other in relation to the admission processes of the schools concerned.

Many of the provisions under the Act’s new rules are already in effect in several schools around the country. Other rules will come into full effect by 2021.

These will include: 

  • a First Come First Serve policy;
  • an admissions notice, and;
  • a withdrawal of applications.

Among these changes will also be the full criteria of how schools admit pupils with SENs. This is currently in development.

Can my child still be refused a place? 

A special school can refuse to admit your child if the school does not cater to the specified category of special need concerned.

If you are applying for your child to enter a ‘special class’ in a school that was established to provide exclusively for students with special needs, the school can refuse to admit your child to that class if they do not have the specified category of special need concerned.

What if I can’t find a suitable place? 

If you still cannot find a suitable school or class place for your autistic child, the NCSE is obliged to help you. They can designate a school in your area for your child and that school must make additional provisions for your child to attend. 

You can get in touch with the NCSE by contacting your local Special Educational Needs Organiser (SENO).

If you are unsure of who your SENO is, you can find out using the NCSE’s online directory: https://ncse.ie/regional-services-contact-list  

If you are still struggling to find a suitable school or class place, contact Tusla – the Child and Family Agency.

Other Rules

There are several new rules that are also important to know when making new applications for a school place.

You cannot put a newborn child’s name down on a school’s waiting list under the law’s new rules. However, if you have already put a child’s name down who has yet to begin school, they may still be able to attend. Those on waiting lists to start in the years leading up to 2026/2027 are safe. Any children’s names who are on lists to begin afterwards will be scrapped.

Some schools may require you to notify them about applying for, or accepting, a school place in another school. You should check a school’s admission policy for the requirements around this.

The new law means that schools are not allowed to ask you if your child has a special educational need. Nor can they ask about their academic abilities. This is so as to make the applications process fairer for all children enrolling in the school. You may disclose that your child has SENs or a disability, or if you suspect if they may have either or, at your own discretion. 

What if I need to Appeal or Complain about my Child’s School Place?

If you’re unhappy with where your child has been allocated a place or you are not satisfied with some part of the admissions process, you can appeal to the General Secretary of the Department of Education and Skills.

You must fill out a form called the Section 29 Appeals Application Form. You can find a copy of the form online at the Department of Education’s website. When sending your form, you must include a letter confirming the decision of the school’s board of management. The letter must be signed by a member of the board of management and must clearly state their title. 

A completed form must be posted as a letter to Section 29 Appeals Administration Unit, Department of Education and Skills, Friar’s Mill Road, Mullingar, Co Westmeath, N91 H30Y.

Can this be improved? Contact webeditor@asiam.ie if you have any suggestions for this article.