Disability Agenda Issue 2.2 - Education and Disability

August 2005


In Ireland, every child resident in the State, is entitled to free primary education. This right has been enshrined in the Constitution since the 1920s and the 1937 Constitution, Bunreacht na hEireann, contains several provisions about education. The Education Act 1998 refers specifically to children with a disability or other special educational needs. It requires the Minister for Education to ensure that a level of quality of education appropriate to meeting the needs and abilities of a person is available to each person resident in the State, including persons with disabilities or special educational needs. Six years after the 1998 legislation, the Education for Persons with Special Educational Needs Act, 2004 was passed concentrating on education for persons with disabilities or special educational needs.

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The Education for Persons with Special Educational Needs Act 2004

The President signed the Education for Persons with Special Educational Needs Act into law in July 2004. The Act does not come into force until the Minister for Education and Science signs orders to commence it. It will be implemented gradually over the course of a number of years. It sets out how education is to be provided for persons with special educational needs in the future.

The Act does a number of things:

  • It sets out the aims and expected outcomes of education for persons with special educational needs.
  • It outlines key elements of the process by which these ends are to be achieved.
  • It describes the structures for implementing the provisions of the Act and establishes a new body, the National Council for Special Education.
  • It provides for appeals procedures in relation to decisions about the education of persons with special educational needs and establishes an Appeals Board.

The key words in the title of the Act are 'education', ' person' and 'special educational needs'. The Act does not define education or person but does define the term 'child' as 'a person less than eighteen years of age'. 'Special educational needs' means 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 main focus of the Act is directed towards early education, first and second levels, with a few brief references to further and adult education.

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Aims and outcomes

The Act acknowledges that persons with special educational needs have the same right to education as their peers without special educational needs. The legislation aims to ensure that children with special educational needs, will be enabled to leave school with the skills necessary to participate to the level of their ability, in society and to live independent lives.

Education is to be 'inclusive' unless there are specific reasons why a specialised placement is required for a child. This might happen, firstly, where inclusive education would not be in the best interests of the child concerned; or secondly, where the inclusion of the child with special educational needs would be inconsistent with the effective provision of education for the children with whom s/he is to be educated.

The Act highlights the role of parents in education. Parents are to be consulted about their child's assessment, the child's education, kept informed of the child's progress and involved on the team for preparing an education plan.

An educational plan is a key element in the child's progress through the education system. The plan is to be prepared by a team including the parents, teacher, the child and other professionals. Reviews are to occur annually and amendments made to the plan where appropriate.

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The process of education

The need to identify children who may have a special educational need and to take action to address these needs is a central element of the Act. There are a number of assessment processes envisaged. These include assessment on an in-school basis, assessment by health services and assessment at the direction of the National Council for Special Education. Where special educational needs are identified, an education plan is to be drawn up for the child and schools will be entitled to additional resources and supports to assist in implementing the plan. The plan is to be reviewed regularly and the parents and special educational needs organisers are to receive reports about the child's progress.

The Act assigns the principal of a school an important role in the education of children with special educational needs. S/he has duties in the identification of children who may have special educational needs, in taking steps to address these needs, in arranging for assessments, in consulting parents, in preparing, implementing and reviewing an education plan and in making arrangements for transfer/ transition from one school to another. The Act also makes provision for parents to notify the principal that they are of the opinion that their child is not benefiting from the education provided in the school to the extent that would be expected and in turn the principal is required to take appropriate steps to address the needs of the child.

Where a child is not a student, the relevant health service is generally responsible for the assessment. Where special education needs are confirmed, the health service informs the Council of the child's needs and a plan is then developed at the direction of the Council.

At various stages in the process there are opportunities to refer disputes to the Appeals Board. Various parties may bring an appeal or seek resolution of a dispute, including parents, boards of management, health services and the Council.

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New Structures

The Act provides for three major changes to current structures. In the first place, at present the Department of Education and Science has responsibility for special education. This will evolve as the provisions of the Act come into effect. Three ministers, the Ministers for Education and Science, for Health and Children and for Finance will have roles and must take government policy into account in discharging special education responsibilities.

Secondly, the National Council for Special Education is established. Much of the work currently undertaken by the Department of Education will be transferred to the National Council for Special Education. One of the new developments is that the Council has the power to designate a particular school for a child, taking into account the needs of the child, the wishes of the parents and the capacity of the school to accommodate the child and meet his/her needs including the capacity of the school to meet the child's needs with additional supports and resources. The Council employs special educational needs organisers who will work at various locations around the country.

The third development is that an Appeals Board will be established. Until now, if parents were dissatisfied with the provision for their child, their only option, if their concerns were not resolved locally or in consultation with State organisations, was to go to court. Under the Act several types of complaints can be brought to the Appeals Board and the Board will determine these within a specific time period. Parents, schools, health services and the council can bring complaints to the Board.

In addition to the appeals mechanism the Act also provides for mediation in certain cases. This can arise where a person complains to the Minister that the special educational needs of a person are not being met or where a person proposes to bring or has brought legal proceedings in respect of the alleged failure to meet those needs. The Act empowers the Minister for Education and Science to prescribe regulations to make these complaints the subject of mediation. The mediation process will be held in private and there will be limited information disclosed about it or about any outcomes. If a person decides not to participate in the mediation process and goes to court, the court may, when making a decision as to costs, take a refusal to participate or a failure to participate in good faith, in mediation into account.

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Promises and pitfalls

There are positive aspects in the Act. However many of the promises in the Act, for example that resources will be provided to a school for the education of the relevant student, are subject to available resources. This is a key difficulty. The Act is clear in that any decisions made by the Minister for Education and Science or the Minister for Health and Children, are subject to the approval of the Minister for Finance.

Furthermore, the timeframe for the Act allows the provisions to be implemented over the course of several years. An implementation group will make recommendations and after that the provisions should be in place within five years. In practical terms, this means that the provisions of the Act are up to six years away from becoming a reality. In these circumstances, the delays that have bedevilled special educational provision to date are likely to continue for several years to come.

The theme of the Act is the inclusion, wherever possible, of children with special educational needs in mainstream schools. One of the features of the Act is the recognition of the need for the involvement of health services in providing supports and resources to enable some children participate and benefit from education. In the past, there has been a segregation of the dimensions of care and education and a parallel system has emerged in which two strands of development have become segregated. Dr. Kelleghan has highlighted the limitation of this situation as regards the pre-school sector as follows: His remarks also apply to other education sectors.

"It is perhaps unfortunate that child-care and educational programmes have grown independently of each other and that communication between the two traditions has been rather limited since, viewed from the child's point of view, it is unlikely that either type of programme on its own can fully meet the needs of the child".

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Education and Disability

Provision and participation for the early childhood stage

Education is not compulsory until a child reaches six years of age. However, many younger children attend national schools or pre-schools. Children with special educational needs in this age bracket may attend ordinary or special preschools or alternatively, mainstream or special national schools. Schools come with the scope of the Department of Education and Science while pre-schools and crèches are the responsibility of the Department of Health and Children.

In practice, there is a high level of participation in education among the under six age group, with a total figure of 83,428 of four and five year olds in schools. Statistics from the Department of Education and Science show that there were 27,043 four and 55, 465 five year olds attending national schools during the 2002/2003 school year and 960 three year olds attended various pre-schools funded by the Department, mainly the Early Start centres.

The figures include over a thousand children with identified special educational needs in ordinary national schools and almost three hundred in special national schools. The breakdown is as follows: There were three three-year olds, 339 four year olds and 834 five year olds with special educational needs giving a total of 1176 children. The special schools catered for six three-year olds, 99 four year olds and 182 five year olds who were enrolled for the 2002/3 school years making a total 287 children.

Many other children attend some form of pre-school provision. Pre-school services are subject to the provisions of the Child Care Act 1991 and are defined as " any pre-school, play group, day nursery, crèche, day-care or other similar service which caters for pre-school children, including those grant aided by health boards". (Child Care Act, 1991, section 49). A pre-school child means a "child who has not attained the age of six years and who is not attending a national school or a school providing an educational programme similar to a national school".

Under the Child Care Act 1991 service providers must notify the Department of Health and Children of their services. As of late 2003 there was a total of 4202 services providing approximately 70,791 childcare places (source: Child Care Policy Unit, Department of Health and Children). This total is quite close to the number of four to six year olds in national schools. Data from the National Intellectual Disability Database indicates that 178 children (with an intellectual disability) aged zero to six inclusive attended mainstream pre-schools, with 548 attending special pre-school for intellectual disability. Data from the Physical and Sensory Disability Database indicates that 1363 children (with a physical and/or sensory disability) aged less than six years attended playschool or pre-school services, as of June 2004. This indicates that there are approximately 2000 children in the early childhood age range identified as having some form of special need attending some form of development and/or education provision.

The two sectors, pre-school services and national schools, provide approximately 154,000 places for children. To put this figure in context the entire population of under sixes in the State is 332,477 (Census 2002 Vol 2 Table 10). This means that the majority of children in the early childhood age range (approximately 178,256) do not attend any type of formal provision. Therefore home/family settings remain the largest providers of early childhood care, development and education.

One of the central aims of the Education for Persons with Special Educational Needs Act 2004 is to ensure that there will be co-ordination and co-operation between health boards and the National Council for Special Education in relation in the provision of supports for children with special educational needs to facilitate their participation in education. In addition the Act specifies that where a child is not a student the health board has responsibility for the assessment and provision of resources and supports in respect of the child concerned.

On the basis of the Education for Persons with Special Educational Needs Act 2004, it is evident that further provision is envisaged for young children with assessed needs, whether they are students attending school or are non-students. One of the positive features of the legislation is that it provides for transition arrangements to support the transfer of a child with special educational needs from a pre-school to a first level school setting.

Participation by children with special educational needs in first level education

Pupils with assessed special educational needs comprise slightly over 3.6% of the national population of primary school pupils or 16,191 pupils and it should be noted that this includes over fifteen hundred children with special educational needs in the early childhood age range. The figure includes 9,384 in national schools and 6807 in special schools.

A second set of figures is also available from the Department of Education and Science; the census of special education which was conducted by officials in 2003. This survey registered a total enrolment of 23,959 students with special educational needs in primary education, which is considerably higher than the numbers indicated by data in the table above.

It is clear that the level of supports available to students with special educational needs increased significantly over the past six years. The overall numbers of pupils with recognised assessed special educational needs went up by 41% in the five years to 2003. This represents the impact of the government's decision in October to provide that a child with assessed special educational needs would have an automatic entitlement to support. This in turn facilitated increasing numbers of children with special educational needs to attend mainstream schools.

In recent years there has been a very significant increase in the numbers of children with special educational needs enrolling in mainstream schools, with an associated trend of fewer young children attending special schools.

The Education for Persons with Special Educational Needs Act 2004 provides for transition arrangements to support the transfer of a child with special educational needs from a primary school to a second level school setting. However it is not yet clear when this support will be implemented.

Participation in education at second level by students with special educational needs

Data supplied by the DES indicates that there are 5,322 students in vocational schools, 3,443 in community and comprehensive schools and 1,208 in secondary schools who have a dedicated allocation of special educational supports. The total figure is significantly less than the level of students in primary schools with a dedicated allocation of supports, even when allowances are made for a lower enrolment overall at second level. However there are also additional posts available to a school, which may be used at its discretion to support students with special educational needs.

A survey conducted by the NDA (Heelan, 2004) found that 4.3% of the total number of students enrolling in second level in 1997/98 had one or more disabilities. However, this figure - which does not include students in special schools - is higher than the total incidence at primary level.

It is clear that there is a need for additional data on provision for, and participation by, students with special educational needs at second level.

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School completion patterns by students with disabilities

One of the disturbing findings of Census 2002 was that students with a disability are more likely to leave school early than their non-disabled peers. This pattern has an impact on their further participation in education and also on the representation of students with disabilities at third level.

One of the major influences on employment levels and earning capacity is the level of education achieved.

There is a significant difference between the education levels attained by people with disabilities, and the rest of the population; 46% of people with disabilities left after primary school compared to 18% of the overall population.

Participation rates in education for boys aged 15 to 19 are 10% lower for those with disabilities. For girls, the difference is 15% (Census 2002). This is illustrated in the chart below. There are also differences within types of disability - young people with learning or intellectual disabilities are at the average for all disabled students, young people with sight or hearing disabilities are more likely to remain at school, while those with mobility problems more likely to leave early. A survey of second-level schools conducted by AHEAD in 1997/8 showed less than one in five schools was fully accessible. This may contribute to the low participation rate in education of teenagers with physical disabilities, if they experience restricted mobility.

As education is a critical influence on earnings, lower education levels lead to lower earning power. Compared to people with primary level education only, on average people with Junior Cert or equivalent earn about 10% more, those with a Leaving Cert., about a quarter more, and people with a degree, about three quarters more (ESRI, 2003: Table 3.2). So when people with disabilities lose out on education, they may end up with a lifelong reduction in earning capacity.

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Moving forward

The Education for Persons with Special Educational Needs Act 2004 sets out how education is to be provided in future for persons with such needs. The need to improve pathways from pre-school to first level and from first level to second level is an important aspect of improving the education experience for children with special educational needs. In this regard, the transition provisions are to be welcomed. The Act also provides for planning for future educational needs. This is to occur at a time considered appropriate by the principal and special educational needs organiser or during the twelve-month period in advance of the eighteenth birthday. In view of the pattern of early school leaving by students with disabilities, there is a need for vigilance to ensure that the planning occurs at as early a stage as possible.

There is also a need to build on the developments, which have taken place in supporting the education of persons with special educational needs since 1998. The prompt implementation of the Act should assist in improving the educational experience for persons with special educational needs.

Page last updated: 05/10/2011