Mc D. [a minor] -v- Minister for Education & Science & Ors, [2008] IEHC 265 (2008)

Docket Number:2005 1381 JR
Party Name:Mc D. [a minor], Minister for Education & Science & Ors
Judge:O''Neill J.

THE HIGH COURT2005 No. 1381 J.R.S. McD (A MINOR SUING BY HIS NEXT FRIEND, M. McD)APPLICANTANDMINISTER FOR EDUCATION AND SCIENCE, HEALTH SERVICE EXECUTIVE, IRELAND AND ATTORNEY GENERAL RESPONDENTSJUDGMENT of O'Neill J. delivered the 29th day of July 2008.The applicant was born on 20th May, 1996. Early in his life, in 1999, he was diagnosed as suffering from a pervasive developmental disorder within the autism spectrum and mild developmental delay. In the year 2000, he commenced school in a national school in a class for autistic children. There were six children in the class and three special needs assistants. At the same time he commenced home tuition. This was for two hours per day, Monday to Friday during school terms. The tuition involved using the Applied Behavioural Analysis (A.B.A.) and the Treatment and Education of Autistic and related Communication Handicapped Children (T.E.A.C.C.H.) methods and was given by a tutor trained in these methods of teaching. The A.B.A. programme addressed core academic areas including reading, writing and mathematics and also self help skills, care of the environment, social skills and language. This tuition was paid for by the first named respondent. Each year the applicant's parents applied for the grant for the tuition. Their applications were granted each time until September 2005.The applicant progressed very well under these arrangements, to the point that in 2006, he was considered by all the professionals dealing with him suitable for inclusion in a mainstream class in September, 2006. The applicant's parents were naturally very pleased with this state of affairs and were fully supportive of the decision to move the applicant to a mainstream class in September, 2006.By a letter dated 27th September, 2005, the first named respondent intimated a very significant change to the arrangements that had prevailed in the preceding years. The relevant part of that letter reads as follows:"The Department has for some time been carrying out a review of the home tuition scheme as it currently pertains to children with special educational needs. The Department considers that school-based education provision is the most appropriate intervention for all children, including those with special educational needs. In this regard, home tuition is only intended as an interim measure until a suitable school placement is secured.In the circumstances the Department has discontinued the practice whereby children who are in full-time education provision would also be able to avail of home tuition grants. Therefore any new applicants for home tuition who are in full-time educational placement are not being provided with home tuition grants also.The Department accepts that in the case of your child it has to date provided a home tuition grant even though your child is attending school on a full time basis. You should note that the Department will not be in a position to continue to do so on a permanent basis going forward.However, rather than withdraw the home tuition grant without further consideration being given to the needs of your child, the Department can confirm that it will continue to provide a home tuition to you in respect of your child until the 22nd of December 2005. In addition to providing you with the home tuition grant, the Department is also referring details of your child's case to the local Special Educational Needs Organiser (SENO) for your area. Since the 1st January 2005 SENOs have been employed in each county and are responsible for ensuring that an appropriate education is provided to all children with special educational needs. In addition, the SENOs are responsible for co-ordinating and facilitating delivery of educational services to children with disabilities at local level. One of the main roles of the SENO is to act as a focal point of contact for parents/guardians and schools, and process applications for resources for children with disabilities who have special educational needs.With this in mind, the Department has requested the school to make contact with the SENO in order that the capacity for the school to meet the needs of your child will be examined with a view to ensuring that an appropriate educational response is available to your child in the school which s/he is attending, without the need for home tuition to be provided in addition to the educational response being provided by the school.. (sic) In this regard, it is envisaged that the process will involve discussions between you, as the parents, the school and the SENO.Your local SENO is..."Notwithstanding the fact that the applicant had been in receipt of the home school tuition grant since 2000, his parents learned for the first time in the above letter that the first named respondent considered that the scheme "an interim measure", until such time as a suitable school placement was secured. The applicant's parents were very aggrieved by this withdrawal of the home tuition grant, believing as they did, that the applicant's progress had in large measure been achieved through it and that his continuing progress depended on it. Through their solicitor, they engaged in correspondence with the first named respondent in an attempt to get her to reverse the decision.The second named respondent withdrew the speech and language therapy and the occupational therapy services that the applicant had been in receipt of from the "B" Outreach Service as of March 2007. These services had, according to the second named respondent, been provided for six months only for the purpose of assisting the applicant with his transition into a mainstream class. Following assessments of the needs of the applicant by members of the "B" Outreach Service team it was concluded that discharge from the service and integration into mainstream school was the most appropriate course for the applicant.The first named respondent refused to revisit her decision to withdraw the home tuition grant and on 19th December, 2005, the applicant obtained the leave of this Court (Peart J.) to pursue by way of judicial review the reliefs sought in these proceedings. In summary, the reliefs sought are an order of certiorari quashing the decision of the first named respondent to withdraw the home tuition grant; a declaration that the first named respondent has failed to protect and vindicate the applicant's constitutional right to education under Articles 40.3, 42.3.2 and 42.4 of the Constitution; a declaration that the respondents have failed in their statutory obligations pursuant to the Education Act, 1998 (the Act of 1998) to provide for and maintain an appropriate education for the applicant; a declaration that the respondents failed in their statutory obligations to the applicant, a person with special educational needs as defined by the Special Educational Needs Act, 2004 (the Act of 2004) and with a disability under the Disability Act, 2005 (the Act of 2005) and a declaration that the respondents have failed to vindicate the rights of the applicant under Article 2 of Protocol I of the European Convention on Human Rights Act, 2003. Orders of mandamus were sought directing the respondents to comply with the subject matter of the foregoing declarations. Relief under the European Convention on Human Rights was not pursued at the hearing. The grounds upon which the leave was granted may be summarised as follows:1. That s. 7 of the Act of 1998 imposes a statutory duty on the first named respondent to provide support services and a level and quality of education appropriate to meet the needs and abilities of the applicant and to plan and coordinate support services.2. That s. 13 of the Act of 2004 imposes on the first named respondent a duty to make resources available for the education of persons with special educational needs and inter alia for the greater involvement of parents in the education of children with special educational needs.3. That the Act of 2005 provides for the assessment of health and education needs occasioned to persons with disabilities by their disabilities and it is for the first named respondent to make provision for those needs.4. That the first named respondent, in deciding to withdraw the home tuition grant, applied a policy decision without any regard or any adequate or proper regard to the particular circumstances and needs of the applicant and was made without notice to the applicant or to his next friend and represented an invidious discrimination against the applicant and was detrimental to his welfare.5. That the first named respondent is responsible for providing appropriate education and support services to the applicant and, in withdrawing the home tuition grant from the applicant, the first named respondent has failed to provide the appropriate educational facilities, health services and support services for the applicant under the Act of 1998 and the Act of 2004.6. That the first named respondent's failure will result in the breach of the applicant's right to an inclusive education pursuant to the Act of 2004 and/or his personal right to be educated.7. That the guarantees under Article 40.3 and Article 42 of the Constitution to provide for and maintain a suitable education for the applicant have been violated.8. That the respondents have breached their statutory obligations under Article 2 of Protocol 1 of the European Convention on Human Rights Act 2002.The relevant constitutional provision in these proceedings is Article 42.4 of Bunreacht na hÉireann which provides:"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."The relevant statutory provisions are ss. 2, 6 and 7 of the Act of 1998 andss. 1, 2 and...

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