RIGHT TO EDUCATION UNDER IRISH LAW

IRISH TRAVELLER MOVEMENT INDEPENDENT LAW CENTRE
 

Presentation made to the ITM Education Working Group
Portlaoise, 20th April 2010


Section 1: Constitutional Right to Education

Section 2: Legislative Framework

Section 3: Expulsion, Suspension, Refusal to Enrol

Section 4: Equality Acts 2000-2004


Section 1: Constitutional Right to Education


Parents as the primary educator:

Article 42 acknowledges that the parent is the natural and primary educator of the child.
Parents enjoy free choice in the education of their children and cannot be forced to send their children to schools designated by the state.
-     DPP v Best 1998
The right to a free primary education
Article 42.4 obliges the state to provide for free primary education.
-    Crowley v Ireland 1980
-    Campaign to Separate Church and State v Minister for Education 1998

Right to Special Education Provision

The Constitution does not make any express provision for the right to special educational provision; however, the existence of a right to special education provision has been established by various decisions of the Superior Courts and has been interpreted to derive from Article 42 and other provisions.  
- Ryan – v – Attorney General (1964 I.R. 294) stated;
"giving each child such advice, instruction and teaching as will enable him/her to make the best possible use of his/her inherent and potential capacities, physical, mental, and moral however limited these capacities may be".

- Sinnott – v – The Minister for Education, [2001] 2 I.R. 545 (High Court)
the right to education does not extend beyond the age of 18 years. 

-    O’Carolan – v – The Minister for Education, (2005 IEHC 296)
in determining whether the applicants constitutional rights to education was being vindicated, the test was whether the provision of education on offer was "appropriate".  


Section 2: Legislative Framework:

- Education Act 1998,
-    Education of Persons with Special Needs Act 2004,
-    Disability Act 2005

Overview of the Act:
-    Broad: refers to persons with disabilities (unlike the Constitution), refers to the term "person" as opposed to "child"
-    Limited: Minister is limited by availability of resources

Section 6 sets out the objective of the Act of which the following are of particular interest to those with special educational needs:

(a)    To give practical effect to the constitutional rights of children who have a disability or who have other special educational needs;
(b)    To provide that there is made available, a level of quality of education appropriate to meeting the needs and abilities of those people;
(c)    To promote a quality of access to and participation in education, and to promote the means whereby students may benefit from education;
(d)    To promote effective liaison and consultation between schools and centres for education, patrons, teachers, the community served by schools, local authorities, health boards, persons or groups of persons who have a special interest in or experience of the education of students with special educational needs and the Minister.


The Act makes it the function of the Minister under Section 7 to:
provide funding to each recognised school, and centre for education and to provide support services
make all reasonable efforts to consult with persons who have special interest in/experience of education of students with special ed. needs.

Section 7 of that Act has not been pleaded in various cases, most particularly in the Sinnott case, and subsequent litigants have been reluctant to rely solely on the legislation.


Special Needs Assessments

1. How do I get my child assessed?

If the child is a student:
1.    Section 3 (2) obliges a Principal to take the measures to meet the educational needs of a particular child, who in the Principal's opinion, is not benefiting from the education programme in the school to the extent that would be expected of children who do not have special educational needs.  This opinion can be formed by parents notifying the Principal that they hold that same opinion.

2.    Section 4 (2) places obligations on the National Council for Special Education (NCSE) in respect of a child who is a student to cause an assessment to be carried out where the opinion is held that the child may have special educational needs. Section 4 (3) also provides that parents who believe that their child may have special educational needs may make this request to the NCSE. This decision can be appealed to the Special Education Appeals Board in some circumstances.  

If the child is not a student:
1.    Where a Health Board is of the opinion that a child, who is not a student, may have special educational needs Section 4 (1) obliges the Board to cause an assessment to be carried out in such circumstances. Section 4 (3) also provides that parents who believe that their child may have special educational needs may make this request of the Health Board This decision can be appealed to the Special Education Appeals Board in some circumstances.  

2. Who assesses my child?

The assessment is carried out with the assistance of persons possessing such expertise as is considered appropriate by either the school Principal, the Health Board, or the Council.  

3. May I participate in the assessment?

Parents may participate in the assessment of a child, "in a manner that is consistent with the assessment being carried out effectively"

Education Plans

1. Who prepares the Education Plan?

1. School based plan may be prepared (Section 3) or
2. Council prepared plan (Section 8). This occurs in more severe and complex cases where the Principal feels that an education plan prepared in this way, will not meet the child's special educational needs. Section 3 (11) obliges them to request the National Council for Special Education to prepare the plan under Section 8.  Section 8 (1) requires the Council to direct the relevant special educational needs organiser, to cause an education to be prepared in respect of that child.

The Education Plan gives rise to a right to receive a special education and related support services which are specified therein.

Content: Section 9 (1) entitles the Council to publish a notice from time to time setting out the form that educational plans should take.  Section 9 (2) sets out a list of items which should be included in the plan itself.  
Review: Section 11(1), provision is made for the periodic review of educational plans, and obliges Principal to review the operation of plans at regular intervals of not less than 1 year.



National Council for Special Education

Established under Section 19 of the 2004 Act.

Role: assessment and preparation of education plans as well as various functions set out at Section 20.  Co-ordination, monitoring and review of special education and provision, consultation with interested parties, the provision and dissemination of information, and the commissioning and conduct of research.  

Special Education Appeals Board

Established under Section 36 of the 2004 Act.

Role: to deal with a broad range of disputes relating to the provisions of the 2004 Act.  

Appeals may be brought to the SEAB in respect of a wide range of issues, eg:

• the refusal by the Council to arrange for an assessment, following request by Principal;  
• a refusal by the Council to arrange for the preparation of an education plan following a request by Principal;  
• an assessment on the grounds that it was not carried out in a manner which conform to the standards determined under the Act;  
• the designation of a particular school in a child's education plan, and a failure to implement an educational plan or any part thereof.  

An appeal can be brought by a particular school Principal, by the parents, or by way of appeal brought by a Board of Management.  


People with disabilities of all ages are entitled to apply to a Health Board for an independent assessment of need relating to their disabilities pursuant to Section 9.  Such assessments are to be carried out without regard to the cost of, or the capacity to provide any service identified in the assessment as being appropriate to meet the needs of the applicant concerned, as provided under Section 8 (5).  

If the assessment concludes that educational services are appropriate for the applicant concerned, the Chief Executive of the Health Board is obliged to arrange for the preparation of a "service statement", specifying the services to be provided.  

Despite the far reaching provisions of Section 8 (5) these are substantially weakened and undermined by the provisions relating to resources set out under Section 5.  


Section 3: Expulsion, Suspension and Refusal to Enrol


1.    Expulsion and Suspension

A.    PROCEDURES

Expulsion

Expulsion is the most severe sanction available to a school against a student. It should only be imposed for very serious breaches of school rules or in cases where the rights of a greater number of students are being denied because of the continual disruptive behaviour of an individual.

Who may expel?

The Principal has power, for any cause which s/he judges adequate, to dismiss a pupil, subject to the approval of the Board of Management.

Process of expulsion

Should be clearly set out in the policy statement and conform in every way to the requirements of natural justice.

Procedures before BOM in an expulsion
(i)    If the Principal decides to recommend to the Board of Management that the student be expelled, s/he must inform the student’s parents in writing of the decision, the reason/s for it and of their right to make representations to the Board of Management on behalf of the student. In the interest of the student, parents should be required to give notice to the Secretary of the Board of Management of their intention to make such representations no later than a specified date to enable an early hearing by the Board of Management.

(ii)    Arrangements should be made at the earliest possible date for a joint meeting of the Board of Management with the Principal and the parents. The recommendation of the Principal and the representations (if requested) of the parents should be heard by the Board at this meeting. No new evidence or information which had not previously been made known to the parents should be introduced at this meeting.  The student may need to stand suspended from school pending the decision of the Board of Management.

(iii)    If the recommendation of the Principal is rejected, it is a matter for the Board to decide on what conditions, if any, the student will be allowed back to school.

(iv)    If the recommendation of the Principal is approved the parents or, (in the case of a student over 18 years) the student must be informed of their right to appeal the decision to the Secretary General of the Department of Education and Science under Section 29 of the Education Act, 1998.

(v)    Where a Board of Management has taken the decision to expel a student, it is obliged to notify the designated educational welfare officer of its opinion and the reasons therefor. A student shall not be considered expelled before the passing of 20 school days from the receipt of such notification by the educational welfare officer. The Board is obliged to co-operate fully with the educational welfare officer in the fulfilment of his/her duties under section 24 of the Education (Welfare) Act, 2000.

(vi)    The Education Welfare Officer NEWB has the right, under section 29 of the Education Act, 1998, to appeal a decision of the Board of Management to expel and, in the event that such an appeal is initiated by a parent or student, to make submissions to the appeals committee.

(vii)    The School is advised to assist in finding a place in another school for a dismissed pupil, particularly if the pupil is under school-leaving age.

Suspension

Definition
Suspension is the withdrawal of permission from a pupil to attend school for a specified period of time or pending the completion of a particular event or instruction. Its effect on the educational progress of a student should be carefully considered within the context of the school’s Code of Behaviour.

Period of Suspension
The period of suspension must be limited and must have regard to the need to ensure that the pupil can reasonably resume his/her studies on the completion of the suspension. Suspension for an indefinite period, or ‘open ended’ suspensions may be seen to constitute expulsion and may be challenged.

Obligations and Time Limits
It should be noted that the Principal of the school is obliged under Section 21 of the Education (Welfare) Act 2000 to inform the Educational Welfare Officer in writing if a pupil is suspended for 6 days or more. All suspensions should be reported to the Board of Management.

Who may suspend?
The authority to suspend a pupil rests with the Principal of the school subject to the right of the parents (or of a pupil who is over 18 years) to appeal to the Board of Management. This authority may be delegated in very limited and specific circumstances to senior management personnel.

Suspension as a sanction.
Suspension is a serious sanction and should only be imposed where other efforts to resolve a disciplinary situation have failed or where the nature of an incident dictates that the student be removed from the school immediately.

Suspension procedure
Clear procedures for suspension must be agreed and set out within the policy statement:

• Parents must be informed, in writing, of the reasons for the suspension, the period of the suspension and the requirements which must be fulfilled to gain reinstatement.
• Parents must be informed of their right to appeal the decision to suspend and procedures to be followed in making such an appeal.
• Pupils should not be dismissed from school unless and until arrangements are made for their safe return to the care of their families.
• Records must be kept of all meetings and/or phone calls in connection with the suspension.

B.LAW

Statutes

Education Act 1998
Section 15(2)(d):  The Board of Management must publish policy of the school concerning admission to and participation in the school, including the policy of the school relating to expulsion and suspension of students

Education (Welfare) Act 2000
Section 23: Board of Management obliged to publish and disseminate to parents and pupils the Code of Behaviour to be observed by all pupils in the school including:
-    the procedures to be followed before a student may be suspended or expelled from the school [Section 23(2)(c)]
-    the grounds for removing a suspension imposed in relation to a student [Section 23(2)(d)]

Section 24: Sets out the statutory obligations which must be observed by the Board of Management in expelling a pupil from school.

1. Where a Board of Management or "a person acting on its behalf" believes that a student should be expelled it must before, doing so, inform the Educational Welfare Officer of this belief and the reason for so believing.
2. The Educational Welfare Officer must consult with the Principal (or his/her nominee), the student and his/her parents and other appropriate persons, and convene a meeting of those willing to attend.
3. A student may not be expelled for 20 days after the Educational Welfare Officer receives this notification.
4. A Board has the right to take such reasonable measures as it considers appropriate "to ensure that good order and discipline are maintained …. and the safety of students is secured during this twenty day period."

Requirements of Natural Justice (Constitution)

1. Audi alteram partem
You should be given an opportunity to have your side of the case heard.

2. Nemo iudex in causa sua
No one should judge the case if there is a reasonable apprehension that they will be biased.

(i)    When the Board has heard all of the evidence, the parents and/or their representative/s and the Principal must withdraw to allow the Board to consider the case. Even though the Principal is a member of the Board, s/he may not be party to the consideration of the case as s/he is an involved party. Further the Board should ensure that any member of the Board who might have a conflicting interest should be excused and not participate in the decision

(ii)    To ensure its independence as the final authority in the case, the Board of Management must not be involved in the process leading to the decision of the Principal to recommend the expulsion of the student.

3. Fair Hearing
General principles: prior notice to affected parties, allegation of wrongdoing should be made to affected person(s) prior to determination with such person(s) allowed to challenge the allegation made against them
The doctrine of "well-knew"- Gallagher v The Revenue Commissioners (No. 1) [1991] 2 IR 370 which concerned the suspension of a Customs and Excise officer. Blayney J. (at 374), whilst accepting that the principles of natural justice meant that the person suspended should be informed as to the reasons why, held that an exception may occur where he "well knew why he had been suspended"

(i)    The parents are entitled to seek access to the student’s file and to documentation relevant to the expulsion. If the Principal, for whatever reason, refuses to hand over copies of documentation, the parents may subsequently have a legitimate complaint that full details of the 'case to answer' were not furnished in advance. 

(ii)    The case against the student should be put to her/him and s/he should be given an opportunity to respond. The parents should be informed of the grounds upon which expulsion is being considered, and the nature of the evidence being relied upon. It is accepted that the quality of proof required for expulsion need not be of the quality required in a Court of Law.

(iii)    The parents should also be provided with a fair opportunity to consider the evidence and to offer evidence in rebuttal.


4. The Right to an Oral Hearing

• Frenchurch Properties Ltd. v Wexford County Council [1992] 2 IR 268

5. The Right to Cross-Examine

• Where appropriate and necessary.

6. The Right to Legal Representation

• Not an absolute right

7. The Obligation to Give Reasons

• State (Creedon) v Criminal Injuries Compensation Tribunal [1988] IR 51

8. The Right to a Public Hearing

• Barry v Medical Council, Unreported, High Court, February 11, 1997

Appeal procedure under Section 29 of the Education Act 1998

Currently, Section 29 of the Education Act provides that the following decisions may be appealed to the Secretary General of the DES:    
(i)    Permanent exclusion from a school;
(ii)    Suspension for a period which would bring the cumulative period of suspension to 20 school days or longer in any one school year; or
(iii)    Refusal to enrol

Appeals must generally be made within 42 calendar days from the date the decision of the school was notified to the parent or student. Accordingly, schools should advise parents of this right of appeal and associated timeframe when informing them of any of the above categories of decisions.

There are three layers to the procedures for processing these appeals:
(a)    Both parties are asked in the first instance to see if an accommodation can be reached at local level;
(b)    Should that fail, and where the Appeals Committee considers that it may be possible to facilitate agreement between the appellant and school, a facilitator will be appointed to contact the parties at the earliest opportunity;
(c)    Finally, an appeal may be referred for hearing by an Appeals Committee established by the Minister for Education and Science.





Section 4: Equality Acts 2000-2004

What does it cover?
This covers pre-school, primary or post primary schools, adult, continuing or further education, university or other third level or high level institutions public or private.

What is Prohibited?

An educational institution shall not discriminate in relation to :
a)    admission or the terms and conditions of admission
b)    the access of any student to any course, facility or benefit
c)    any other term or condition of participation
d)    the expulsion of a student or other sanction

The prohibited grounds for discrimination are:
Gender, marital status, family status, sexual orientation, religion, age, disability, race, membership of the Travelling Community.

Exemptions
There are exemptions in relation to gender and religion.

How do we apply?
A notification must go the school within 2 months of the date of the discriminatory incident. The case must be lodged within 6 months of the date of the discriminatory incident. www.equalitytribunal.ie