Despite being told by the Department of Education that constitutional rights were at stake, the Department of Finance refused consistent appeals over years for funds to provide education for the severely disabled. This was stated during the Jamie Sinnott case in the Supreme Court yesterday.
Even after a High Court decision in 1993 (in the case of Paul O'Donoghue) asserting the constitutional entitlement of the severely disabled to education, Mr Dermot Gleeson SC said there was "explicit resistance" by the Department of Finance to entreaties from the Department of Education to get the pupil/teacher ratio in classes for the disabled down to 6/1, as stipulated by the High Court.
Mr Gleeson said Paul O'Donoghue's mother, Marie, had to return to the High Court on two occasions after the judgment in her son's favour to get court orders directing the State to adhere to the stipulated pupil/teacher ratio and to ensure her son's education did not regress as a result of school holidays.
These were among the issues the Supreme Court should take into account when deciding whether the High Court was correct in making mandatory orders rather than declarations against the State to ensure it provided for the education of Mr Sinnott, an autistic man, counsel said.
He was continuing submissions on behalf of Mr Sinnott (23), and his mother Kathryn, of Ballinhassig, Co Cork, opposing the State's appeal against a landmark High Court judgment last October.
In the High Court, Mr Justice Barr found the State had breached the constitutional rights of both Sinnotts through its failure to provide for basic education for Mr Sinnott. He found the constitutional entitlement to free primary education is based on need, not age, awarded total damages of more than £270,000 to Mr Sinnott and his mother and made orders directing the State to fund, over the next 21/2 years - when the judge will review the situation - a home-based programme of education for him according to the method of Applied Behavioural Analysis (ABA).
Mr Gleeson said the High Court judge was faced with a situation where there was only the ABA programme available for Mr Sinnott. The State had nothing to offer him. The facility where Mr Sinnott then was admitted its teachers had no training to deal with autism.
The State had cobbled together a programme in the middle of the trial which was condemned by all the experts, including the State's. It was also accepted that unless he received education as a matter of urgency, he would further regress. In addition, there was evidence from Mrs O'Donoghue.
In light of these factors, the High Court judge was bound, as a matter of constitutional duty, to furnish a remedy that would deal with the wrongs Mr Sinnott continued to suffer, he said. The remarkable facts of this case had a relevance to the application of the law. At the time of trial, the evidence demonstrated an ongoing deterioration in Mr Sinnott due to the lack of appropriate education. All the evidence showed that, whatever solution was required for him at the end of the trial, it was a solution which needed to be urgently implemented.
In relation to Mrs Sinnott's case, counsel said the State's failure had breached her right to equality of treatment and her constitutional entitlements as a parent in relation to her son's education. Mrs Sinnott had had to campaign for years, endlessly going to solicitors and politicians, with consequences for her own and her family's life. Mr Paul Sreenan SC, also for the Sinnotts, said the State was advancing arguments that the High Court had breached the doctrine of the separation of powers through directing the State to fund a particular programme of education for Mr Sinnott into the future.
This was an illusion, counsel argued. All the High Court had done was to award damages to Mr Sinnott for past breaches of his constitutional rights. At the time of the trial, the State was still unable to meet his needs and had no programme in place to address these. What Mr Justice Barr did was right.
The appeal continues on Tuesday.
