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Government approves legislation to compel schools to provide special education classes more quickly

The legislation was announced this afternoon by Ministers Norma Foley and Josepha Madigan.

THE GOVERNMENT HAS approved a Bill that will allow the Minister of State for Special Education Josepha Madigan to compel schools to provide special classes for children with special educational needs more quickly.

The Education (Provision in Respect of Children with Special Educational Needs) Bill 2022 will allow the Minister to direct a school to open a special class within six to eight weeks of receiving a report from the National Council for Special Education (NCSE) setting out its opinion that there are insufficient schools places in a certain area.

The current Section 37A process can take between 12 to 18 months to secure a school place for a child. 

The shortened process still allows two opportunities for school patrons and boards to make representations to the Minister ahead of a direction issuing.

The Dáil is now expected to discuss the legislation in a special sitting on Friday.

Announcing the legislation this afternoon, Minister for Education Norma Foley said it is her “primary objective” to promote and support actions that will ensure that the school setting is a welcoming environment for all.

“This legislation is an important step in ensuring that children with special educational needs have a school place for the upcoming school year. This legislation means that a child-centred and child-focused approach is taken to the provision of special education classes,” she said.

“The Department and the NCSE will continue to engage intensely with school authorities to open new special classes for September, but I am confident that this legislation can also play a key role in helping us with those efforts.”

Speaking to reporters this afternoon, Minister Madigan said that today is a “milestone day” for children with education needs.

“I think it will offer them hope. As we know, for many decades, children with additional needs have been, to my mind, neglected, and I think now there’s a recognition from the Government by producing and publishing this legislation at this particular time, will go an awful long way to demonstrate to them the support that we have for them, and the fact that we’re on their side,” she said.

“It will help in the immediate term in terms of trying to provide places for September, but also into the future, so I’m really pleased that Minister Foley and I have written this legislation.”

Madigan said that schools have been working with the department and the NCSE to open new classes and will open at least 315 additional classes this year.

She said that all parties would prefer to see schools volunteer to provide more places rather than places being secured on the back of an order or a direction from the Minister.

She also said that a range of supports is being provided to schools opening new classes, including funding for new staff, support from the Planning and Building Unit within the department for any physical alterations needed for a building, a grant for equipment, and a range of training courses provided by the NCSE.

Labour TD Aodhán Ó Ríordáin earlier criticised Madigan for naming four schools in the Dublin area on RTÉ’s Saturday with Katie Hannon programme, who she claimed had not been engaging with the department on providing school places. 

Asked about this, Madigan said that from her perspective, they were “ignoring the importance of correspondence”.

“The NCSE and the Department assured me that there was insufficient engagement from the schools and that there wasn’t going to be collaboration around opening special class space, and if that continues, then they will be compelled to open further special class places in circumstances where if they already have one, they would have to open two,” she said.

That will apply to other schools nationwide, because there are parents and children contacting me on a daily basis as Minister for special education who are crying out for places in schools, and I want to thank, while I have this opportunity, the schools that have collaborated, and who volunteered to open special classes.

“We’re only in this position because enough schools aren’t volunteering, and that’s why we have no option but to bring this emergency legislation here today.”

Ombudsman report

In a tweet, CEO of autism charity AsIAm Adam Harris said: “We support the government’s announcement on emergency legislation today – it must lead to the swift establishment of autism class places across the country and be followed with appropriate resourcing and supports for schools.”

It comes after a report by the Ombudsman for Children’s Office (OCO) published last week found that the Department of Education is failing children with special educational needs regarding the provision of suitable school places.

“For children who live in provision ‘black spots’, most notably Dublin and Cork, the system can fail in its response. That such failings occur is not acceptable,” the report said.

It made a number of recommendations to address capacity issues that have left a number of children waiting for a school place this September, including advising the Department of Education to prioritise publishing a plan to ensure there are enough school places in the short to medium-term to meet the forecast needs of children with special needs in their local communities.

It also recommended mandating schools to build or re-purpose appropriate existing accommodation to meet the needs of children with special needs.

Speaking following its publication last week, Madigan said there are currently 106 children with special educational needs without a school place in September.

She also confirmed that the Attorney General was being consulted about introducing emergency legislation in order to make the Section 37a process faster and more streamlined.

Sinn Féin and Labour both raised the issue with Tánaiste Leo Varadkar during Leaders’ Questions last week.

Varadkar said there are more children with special needs in school than ever before, but conceded that this is “cold comfort” to any family whose child does not yet have a school place.

The Government has faced criticism from parents and advocates about the difficulty in finding a school and class places for children with additional needs.

It also faced backlash after it proposed opening special education centres in September as an emergency measure in response to a shortage of appropriate school places for children with special educational needs. 

Joint Committee on Autism

The NCSE appeared before the first public meeting of the Joint Oireachtas Committee on Autism this afternoon to discuss autism policy and education.

In his opening remarks, NCSE chief John Kearney said that the council’s vision is for “an inclusive society, where children and adults with special educational needs are supported to achieve better outcomes in their education”.

He also told the Committee that there will be 2,184 autism special classes providing places for over 13,000 children with autism in the forthcoming school year, an increase of 561% since 2011/12.

306 new autism classes have also been established for September 2023.

Asked if he welcomed the legislation to speed up the Section 37a process, Kearney said: “It’s a process that none of us would like to be invoking with a view to delivering special education placements for children, but when you’re weighing up the needs of parents and the requirement for special class placements, ultimately, if the legislation has to be invoked, it is invoked.”

He said that “sharp and decisive action” is required to give assurances to parents.

Many Oireachtas members here have well articulated fears and anxiety and apprehension of parents in terms of the lack of clarity in terms of special class placements, and if it does take legislation to progress that with individual schools then so be it to provide that degree of certainty.

Kearney also said that Section 67 of the Education Act, which provides a power to the NCSE to designate a school place for an individual child in a special class or special school, should be looked at. 

“That would be radical, it’s transformative, but it does actually address the kernel of the issues in terms of securing special class placements for children.”

Committee Cathaoirleach Senator Micheál Carrigy said that over the next nine months, the Committee will sit in public and hear from key stakeholders as we examine policy, the implementation of policy and the legislation relevant to autistic people.

“We look forward to hearing from autistic people, their friends, their families and representative bodies, as well as ministers, Government departments and agencies, to assess the current state of services for autistic people, the barriers that autistic people can face when dealing with the State and how we can make improvements in these areas,” he said.

Carrigy said the committee will plan meetings on the same topic in the coming weeks with Special Education Minister Josepha Madigan, followed by the Minister of State for Disability at the Department of Health, Anne Rabbitte, and AsIAm CEO Adam Harris.

It will also examine issues such as relevant legislation, assessment of need, poor access to assessment and intervention, and the effectiveness of special classes and inclusion later in the year.

The Committee plans to report to both Houses of the Oireachtas by the end of March 2023.

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