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AHEAD: Association for Higher Education Access & Disability
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The Education for Persons with Special Needs Act 2004

Disclaimer This information is not comprehensive but is simply a summary for readers. It is not, and should not be taken as, a legal interpretation of the Act.

What is 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. It states that, in addition to the provisions that exist in current legislation (Education Act 1998, Education Welfare Act 2000 etc), the Act makes further provision for the education of people with special educational needs. In summary the Act:

  • Caters for people with special educational needs age 0-18
  • Establishes the National Council for special Education with responsibility for administrating the legislation
  • Confers functions on Health Boards where it is deemed that the need is a medical, not an educational need
  • Provides for
    • The appointment of Liaison Officers between Health Boards and
    • The Special Education Council, consulting with parents of children under 18
  • The aims of the Act are:
    • to make further provision for the education of people with special educational needs
    • to ensure that their education takes place, as far as possible, in an inclusive environment
    • to ensure that they have the same right as everyone else to avail of and benefit from appropriate education
    • to help children with special educational needs to leave school with the skills necessary to participate, to the level of their capacity, in an inclusive way in the social and economic activities of society and to live independent and fulfilled lives
    • to provide for the greater involvement of parents of children with special educational needs in relation to the education of their children
    • to establish the National Council for Special Education (this Council has already been set up and the Act will give it a statutory basis)
    • to confer certain functions on Health Boards in relation to the education of people with special educational needs
    • to establish an independent appeals system - the Special Education Appeals Board.

Click on the sections below to have further information drop down.

What is the definition of ‘disability’ under this Act?

Under this Act the definition of disability… ‘means, in relation to a person, 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 states that the policy is to educate children with special needs (up to age 18) in an ‘inclusive environment’ with children who do not have special needs, unless this would be inconsistent with the best interests of the child or the effective provision of education to the other children.

What is the function of the National Council for Special Educational Needs?

The National Council for Special Education was set up to improve the delivery of education services to children with disabilities. The National Council for Special Education was established by order of the Minister for Education and Science in December 2003 as an independent statutory body. Its functions are: to co-ordinate the provision of education and related support services with health boards, schools and other relevant bodies to provide a range of services at local and national level in order that the educational needs of children with disabilities are identified and provided for to carry out research and provide expert advice to the Minister on the educational needs of children with disabilities and related services The Council has a network of 80 Special Educational Needs Organisers (SENOs) throughout the country. They are the key contact persons for parents, schools and local health authorities for all issues concerning the organisation, co-ordination and delivery of educational services to children with disabilities.

Who is eligible under this legislation?

A person is accepted to have special educational needs if there is a restriction in their capacity 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 the person learning differently from people who do not have the condition.

How can a person receive services and resources under this Act?

It order to benefit from resources and services under this legislation, it is necessary to carry out an assessment of the child’s educational needs. Under this Act the assessment of a child’s educational need may be started in a number of ways. It may be started by the parents, the school principal, the Health Service Executive (HSE) or the National Council for Special Educational Needs (NCSE). Parents: Regardless of who initiates the process, parental consent is required for assessments ordered by the HSE or the NCSE. However, if a parent considers that their child may have special educational needs, they may ask the NCSE (or alternatively, the HSE if the child is not in school) to initiate an assessment. The relevant body must commence the assessment within one month of the request. However, either body can refuse to carry out an assessment if they believe there are not grounds to support the view that the child has special educational needs. They can also refuse if a similar assessment has been carried out within the previous year. Parents may appeal such decisions and the outcomes of assessments to the Appeals Board who are obliged to give a decision on the appeal within six weeks.

Health Service Executive

If the HSE considers that a child who is not at school may have special educational needs, it may order an assessment of that child. This is mainly directed to pre-school children or children who are being educated at home.

Schools

Following consultation with parents, a school principal can arrange for the assessment of a child who is considered not to be benefiting from the regular educational programme in the school. This assessment must start no later than one month after the principal identifies the need and must be completed within three months. If the assessment finds that the child does have educational needs, then the principal must organise the preparation of an educational plan for the child within one month. Similarly, if the NCSE considers that a child who is at school may have special educational needs, it has the power to order an assessment.

What is an Educational Plan?

An Educational Plan is drawn up for a child by either the principal of the school or the HSE if, following an assessment, the child is deemed to have special educational needs. Educational Plans must be based on the identified needs of the child and in accordance with the guidelines on educational plans prepared by the NCSE. These guidelines have yet to be released by the NCSE. However, an Expert Group who has been working on these guidelines has just submitted a final draft to the Council and it is anticipated that these guidelines will be piloted in a number of schools in the beginning of 2006. The education plan must include:

  • the nature and degree of the child’s abilities, skills and talents
  • the nature and degree of the child’s special educational needs and how those needs affect his or her educational development
  • the present level of educational performance of the child
  • the special education and related support services to be provided to the child to enable the child to benefit from education and to participate in the life of the school
  • where appropriate, the special education and related support services to be provided to the child to enable the child to effectively make the transition from primary school education to post-primary school education
  • the goals which the child is to achieve over a period of up to 12 months.

If the Educational Plan is drawn up by the school, a copy must be given both to the parents of the child and the Special Educational Needs Organiser (SENO) who is an employee of the National Council for Special Education. If the principal of a school thinks that preparing such a plan will not meet the needs of the child then the NCSE may be asked to take responsibility for the preparation of this plan. If the NCSE refuse to do this then the principal of the parents may appeal this to the Appeals Board. If the Educational Plan is drawn up by the NCSE, the process will be led by the relevant SENO. If deemed appropriate the SENO may convene a team to help devise the plan. This team must include:

  • the parents, if they wish to be part of the process
  • the child
  • the principal
  • a teacher
  • a psychologist

The Educational Plan must be reviewed regularly or at least once a year. This allows the principal or the SENO to evaluate the achievements of the child and to make changes to the Plan if it is deemed to be ineffective.

What are the main functions of the SENO?

SENOs deal with the following resource allocation functions:

  • Processing applications from all schools for resource teacher support in respect of children with low-incidence disabilities such as moderate general learning disabilities, visual or hearing impairments, physical disabilities or autism, and deciding on the level of support appropriate to the school
  • Processing applications from second-level schools for resource teacher support in respect of children with high-incidence disabilities such as mild general learning disability and deciding on the level of support appropriate to the school
  • Processing applications from schools and deciding on the appropriate level of special needs assistant support for children with disabilities
  • Examining applications from all schools for special equipment/assistive technology
  • Examining applications from schools for transport arrangements for children with disabilities and making recommendations to the Department of Education & Science
  • Identifying the appropriate educational setting for individual children with special educational needs

The contact details for your local Special Educational Needs Officer can be obtained from the National Council for Special Education through their website http://www.ncse.ie

How can parents appeal decisions made around the Educational Plan?

Parents can appeal aspects of the Education Plan to the Appeals Board including: any statement or description in it of their child’s special educational needs any other statement or description which they consider to be incorrect or inadequate to meet the child’s special educational needs the failure of the school or health board to implement any part of the plan. The Appeals Board must make a decision on any such appeal within 2 months of receiving it.

What happens when the child reaches 18?

As the child approaches adulthood, in particular in the year before reaching 18, the Education Plan must take into consideration the provisions which may need to be made to help the child continue education or training on becoming an adult. The child’s and the parents’ wishes in this respect must be taken into consideration.

Who provides the services identified under the Educational Plan?

The Act states in section 9 (7) that the school shall be provided with the necessary money and resources to implement the Plan. The resources will be provided via the Minister for Education or the Minister for Health and Children and with the consent of the Minister for Finance. The HSE and the NCSE will both have Liaison Officers to ensure that the two work in a co-ordinated and consistent way in providing services.

What is the function of the Special Education Appeals Board?

The Special Education Appeals Board is a statutorily independent body. This Board will have procedures to ensure that the parties can be helped to reach agreement through mediation. If a hearing is necessary, it must be conducted as informally as possible. Under the Act, decisions must be made within certain time frames, generally two months. This Board has yet to be set up. Under the current implementation plan it is expected to be established in late 2006.

What does the Equal Status Act 2000 say about the issue of education?

The Equal Status Act 2000 refers to education in terms of the admissions, access to courses, access to any facility or benefits or any other condition of participation in the establishment. Recourse can be sought through the Office of Equality Investigations in suspected cases of discrimination. The Education for Persons with Special Educational Needs Act 2004 is a further development to this in that it confers powers on the NCSE to designate the school that the child with special educational needs is to attend. Accordingly, the school must admit the child. The school’s Board of Management may appeal to the Appeals Board against any such designations or against any recommendation which the Council may have made about the additional resources to be allocated because of the designation. The burden of proof will be on the Board of Management to show that they do not have the resources to meet the needs of the child concerned.