McD (a minor) -v- Minister for Education and Ors: High Court Judgment was delivered by Mr Justice Iarfhlaith O'Neill on July 29th, 2008.
Judgment
The State has a constitutional and statutory duty to provide for the tuition and training in socialisation skills of a boy suffering from autism. However, as the applicant in this case had not engaged with the arrangements proposed by the State, he did not demonstrate deficiencies in the proposed services and the relief claimed in these proceedings was refused.
Background
The case concerned a now 12- year-old boy who suffers from a developmental disorder within the autism spectrum. From 2000 he attended a national school that had a class for autistic children. He also had home tuition for two hours a day using the applied behaviour analysis (ABA) method, paid for by the Department of Education.
The boy progressed well and he was assessed as able to join a mainstream class from September 2006, when he was 10.
However, the previous September, the Department of Education wrote to the boy's parents informing them that it had been carrying out a review of the home tuition scheme, which it considered to be only an interim measure.
It said it had decided to discontinue home tuition for children with special needs who were in full-time educational provision, while noting that it had provided a grant for home tuition up to this point, despite the child being in full-time education.
It said this would continue until December 2005 and it was referring the child's case to the local Special Educational Needs Organiser (Seno) for the area. The school was also being asked to make contact with the Seno to ensure that the child's educational needs would be met in the school.
The Health Service Executive (HSE), which is also named in the action, said it was withdrawing from March 2007 the speech and language therapy and the occupational therapy it had been providing, on the basis that it was only a six-month assessment service aimed at helping the child's transition into the mainstream class.
This was the first time that the parents learned that the home tuition grant was "only . . . an interim measure".
They contacted a solicitor and embarked on judicial review proceedings aimed at quashing the decision of the Minister to discontinue the home tuition grant, and declarations that both ministers had failed to vindicate the applicant's constitutional right to an education, and had failed in their duty under the Special Educational Needs Act 2004 and the Disability Act 2005.
Counsel for the applicant argued that the withdrawal of the home tuition grant, which focused on communication skills, social skills and socialisation, would mean the child would be unable to function in a mainstream class, and this would deny him his constitutional right to education.
She also argued that the 1998 Education Act imposed a binding duty on the Minister with regard to the provision of support services for children with disabilities.
Counsel for the Minister argued that appropriate provision was being made for the applicant's needs, that he had been referred to the local Seno, but that the parents had failed to engage with the Seno. He also argued that the Minister had the power, under the Act, to exercise a discretion with regard to the provision of support services.
Decision
Mr Justice O'Neill considered the case law on the subject and recalled the words of Mr Justice Hugh Geoghegan in the Sinnott (2001) judgment, when he said that if a handicapped child needed special training to acquire skills normally acquired in the home, "I cannot see why that special training would be inappropriately described as 'education'.
"I am satisfied that regardless of whether one adopts the broader definition of primary education or the narrow one . . . and in this respect I am of the opinion that the weight of authority favours the broader definition, the tuition of the applicant in socialisation and integration in society must be regarded as included in the State's constitutional obligation to provide free primary education to the applicant," Mr Justice O'Neill said.
He recalled that counsel for the Minister said the Department of Education had made provision for the special education needs of the applicant through supplying a Seno and it gave a commitment to provide whatever additional services or therapies were necessary to meet the applicant's needs.
"The applicant, through his parents, rejected this proposal," he said.
"It must be questioned whether that rejection is justified in circumstances where there has been a failure on the part of the applicant's parents to engage with the Seno and to explore and implement the proposals made by the first named respondent."
The applicant's mother had stated that the Seno had failed to give her an appointment based on the institution of the proceedings. However, counsel for the Minister said the Seno had made several unsuccessful attempts to make such an appointment.
Mr Justice O'Neill said the evidence on affidavit established to his satisfaction that the applicant's parents failed to respond to repeated attempts made by the Seno in early 2006 to establish contact.
He said the decision to discontinue the home tuition scheme and focus on school-based education, including for those with special needs, amounted to a policy decision. This was quite consistent with section 2 of the Act of 2004.
The department was entitled to change its policy, but should have regard to the needs and circumstances of an individual. In this case it had appointed a Seno, but this arrangement was met with a refusal by the applicant, through his parents, to avail of the new arrangements.
"In adopting this posture, [the parents] cannot establish to the satisfaction of this court that the measures proposed by the first named respondent [the Minister] would fail to meet the educational needs of the applicant," he said.
This meant that the applicant had failed to discharge the onus of proving that the withdrawal of the home tuition grant amounted to a breach by the Minister of her constitutional obligations under article 42 of the Constitution.
Turning to the question of whether section seven of the Act of 1998 imposes actionable duties on the Minister, Mr Justice O'Neill said that one of the objects of the Act was to give practical effect to the constitutional rights of children, including children with a disability, to an education.
Section six of the Act stated that the Minister "shall" have regard to the list of objects set out in the section, indicating that it was mandatory to do so.
Section 7 (2) went on to specify that it shall be a function of the Minister to provide "support services" to students who have a disability. Together these suggested an obligation to provide a service to cater for the specific education needs of a particular person.
The use of the word "shall" was persuasive that it was the intention of the Oireachtas that a failure to do so would be actionable.
The constitutional obligation of the Minister corresponded with the statutory duty.
"In essence, the first named respondent [the Minister] is required by the Constitution and by the Act of 1998 to ensure that this appropriate tuition and training [in socialisation skills] of the applicant is provided."
However, because the applicant had not engaged with the proposed arrangements, and therefore could not demonstrate they were deficient, he refused the reliefs sought.
The full text of the judgment is on www.courts.ie
Pauline Walley SC and Dympna Glendenning BL, instructed by Pól Ó Murchú, for the applicant; Feichin McDonagh SC and Sunniva McDonagh BL, instructed by the Chief State Solicitor, for the Minister