Education Act 2018 and Special Needs Education

The Right to Education is enshrined in our Constitution, Bunreacht na hÉireann 1937.  Article 42.4° states that;

“The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.”

Furthermore, Article 28 of the United Nations Convention on Rights of Child (UNCRC), which Ireland signed up to in 1992 provides that children and young people have the right to education regardless of race, gender or disability.

Notwithstanding these rights, many children particularly those with special needs have difficulty accessing appropriate education.

Cantillons Solicitors has been to the forefront of establishing rights to education for persons with intellectual disabilities. We have pioneered the law in the area of education with many ground breaking cases.  Up to the time the case of Paul O’Donoghue (a minor) -v- The Minister for Education was taken, the State held the view that they had no obligation to educate persons with intellectual disabilities. This ground breaking case, established that persons with disabilities (no matter how profound) were capable of benefiting from education.  The case established that the State had a constitutional obligation to educate such persons and that such education was primary education.

The cases of Jamie Sinnott and Kathy Sinnott -v- The Minister for Education established that the right to a primary education did not end at the age of twelve (as the Department of Education contended) but extended to the age of eighteen for persons with intellectual disabilities.  The cases also established that if the State failed to provide such education as the person with disabilities was entitled to then that person could be entitled to significant damages.

As a result of the O’Donoghue and Sinnott cases (where Cantillons Solicitors had the privilege of representing the Plaintiffs), not alone did the young men involved (Paul and Jamie) benefit by having their education provision significantly improved, but so also did a whole range of persons with disabilities throughout the country.

Cantillons Solicitors have also pioneered educational litigation for persons with autism.  As a consequence of this litigation, a number of specialist autistic units have been set up throughout the country.

Notwithstanding that as a consequence of this litigation the educational provision for persons with autism and other special needs have been considerably enhanced, there is still insufficient resources and special education spaces available for children with special needs.

Cantillons Solicitors welcomes the commencement of Section 8 of the Education (Admission to Schools) Act 2018 which came into effect on 3^rd December 2018.

This section provides the Minister for Education with a power to compel a school to make additional provision in respect of children with special educational needs i.e. open a special class or classes, where the National Council for Special Education (NCSE) has identified a need for such provision within an area.

This measure will aim to ensure that where there is a gap in provision for the education of children with special needs, as identified by the NCSE, and no school is willing to make such provision available, the gap can be addressed by the issuing of a direction by the Minister to the school.

Under the amendment, exercise of this power will be preceded by a number of steps to allow for engagement between the Minister for Education, the NCSE, the Board of Management and Patron of a school.

Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or info@cantillons.com if you would like more information.

* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement