High Court grants review of decision not to approve child with Down Syndrome for schooling scheme

The July Provision Scheme provides funding for extended schooling for children with ASD and severe/profound learning disability.

THE HIGH COURT has granted leave for a judicial review of a decision by the Minister for Education to refuse the admission of a child with Down Syndrome into a summer schooling scheme.

The boy’s mother who is represented by Free Legal Advice Centres (Flac) is challenging the decision in relation to the department’s ‘July Provision Scheme’, which provides funding towards extra schooling for children with Autism Spectrum Disorder (ASD) or severe/profound learning disability for the month of July.

In her affidavit, the boy’s mother stated that the six-year-old has a diagnosis of Down Syndrome along with a range of other education needs. He does not have a diagnosis of autism or of severe or profound general learning disorder.

He is non verbal, has hearing loss and wears a hearing aid to improve his listening and communication. The child communicates with a combination of sign language and the odd word. He also has poor eyesight.

His mother said he “sometimes becomes frustrated” because of his communication difficulties and is sometimes prone to exhibiting behavioural challenges. He is in senior infants at a mainstream school that his mother said he loves and he gets on well with his special needs assistant.

“Any disruption to his daily routine causes him stress and frustration. Routine and a repetitive schedule is helpful to him. He has difficulty coping with the summer holidays from July to August each year,” she said. 

She said she fears the break from school in summer each year will cause her son to regress. 

In her affidavit, the boy’s mother said she and her husband are “utterly devoted parents”. She said they do their best to keep him interested, engaged and productive but she feels they are not a proper substitute for a more structured and professional environment which school or his tutors provide.

‘Not eligible’ 

She said she contacted the Department of Education in May last year enquiring about whether her son would be entitled to the July Provision Scheme.

This scheme offers school based special classes for students who are eligible, if their schools participate in the scheme, as well as a home-based grant scheme. 

The child’s school does not participate so his mother said they wanted to apply for the home-based grant, which provides funding towards 40 hours of tuition in the home.

A reply from the minister’s private secretary in May last year, cited in the mother’s affidavit, stated that children who do not have the specific diagnoses [ASD or severe to profound general learning disability] are not eligible to participate.

“The department is committed to supporting the educational needs of all children with special needs, however, as the child in question does not have a diagnoses in the autism or severe to profound category, he is not currently eligible to avail of support under the July Programme,” the responses stated. 

The woman subsequently complained to the Workplace Relations Commission, claiming the minister had unlawfully discriminated against her son on disability grounds.

She also sent a report from an educational psychologist who had assessed her son to the department in March. This report stated the child’s needs were many and varied, that he is more at risk of regression the longer his breaks from education are, and that he learns best when he gets regular, structured teaching.

She said an official from the department again replied stating her son did not qualify.

“It is not possible to extend the 2019 July Provision Scheme to further disability categories,” the response stated.

This decision is now the subject of the judicial review.