An intervention by the President of the High Court has led to a “pragmatic” temporary solution to a case alleging an “inflexible” policy of the Minister for Education is depriving two children with Down syndrome of additional resource hours they need to remain in mainstream education.
Lawyers for the Minister stressed the solution – a direction by Mr Justice Nicholas Kearns that the Minister for Education allocate four hours and 15 minutes additional resource hours weekly to the plaintiff childrens’ schools, with the principals having the final say on what pupil is in most need of such hours – is “pragmatic”, “humane”, temporary, confined to this case and not a precedent.
The Department is addressing the issues raised, not conceding any of the claims made and wants to avoid “an avalanche” of similar cases, its counsel David Hegarty SC said.
The solution was achieved after the judge suggested the Department, given the “fast-moving background” to the proceedings and publication last week of a report addressing the issues, might consider whether a “practical” solution could be found.
The case was adjourned to allow lawyers for the Minister take instructions after which Mr Hegarty indicated a direction from the court could effect an interimn pramgatic solution while the wider issues are being addressed.
Events have already overtaken the proceedings and the Department is involved in a review of the existing scheme for allocation of such hours, counsel said. The Department did not concede its model was flawed.
Derek Shorthall BL, for the two children, said their parents were “delighted” with the court’s intervention and the pragmatic approach taken by the Minister.
Mr Justice Kearns, having made the direction, adjourned the case generally to October.
The children, suing the Minister and State through their parents, had alleged an “inflexible” policy governing allocation of additional special assistance hours meant their position could not even be considered.
Earlier, outlining the case, Mr Shorthall said both children were assessed as having a mild learning disability and get some resource hours but, due to a 2005 Department Circular, cannot be considered for additional hours of between three to five a week.
He said the Circular, governing allocation of additional resource hours to children with certain disabilities, applies to Down syndrome children with moderate or severe learning disabilities but not to Down syndrome children with mild learning disabilities. However, children with mild, moderate and severe levels of autism and other disabilities are eligible for the additional hours.
That policy appeared inflexible and the parents of his clients had been told by a Special Education Needs Organiser her hands were tied. This case was about “untying those hands” to allow SENOs consider children such as his clients.
The National Council for Special Education, in a report of June 18th last, found the position under the 2005 Circular neither equitable nor fair and it seemed, at some point in the future, the circular would be no more, counsel said. The parents concern was their children should be considered for the extra hours now as the proposed reform “could take years”.
In outlining the State position, Mr Hegarty said schools decide what children get the additional hours, not the Department. After the Ombudsman for Children expressed regret the Department had not reviewed the 2005 Circular in a timely fashion, the Minister sought advice from the NCSE and it had produced its report just last week.
That report did not accept there was enough evidence to move this group of Down sydrome children with mild learning disabilities into the category where they would get guaranteed extra hours, he said.
The problem is some schools can have greater demands for resource hours than others, counsel added. One of the children in this case got less hours this year because there was a greater demand from “more needy” children.
If there was a flaw in the system, the system was at an advanced stage in providing its own checks and balances and it was for the State to devise the remedy, not the courts, he added.
