S. McD v Minister for Education and Science and Others

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 29 July 2008
• Neutral Citation: [2008] IEHC 265
• Court: High Court
• Date: 29 July 2008

[2008] IEHC 265

THE HIGH COURT

No. 1381 J.R./2005

McD (S) v Min for Education and Sciences & Ors

S.McD (Suing by his next friend, M. McD)

Applicant

And

Minister for Education and Science, Health Service Executive, Ireland and

Attorney General

Respondents

CONSTITUTION ART 40.3

CONSTITUTION ART 40.3.2

CONSTITUTION ART 42.4

DISABILITY ACT 2005

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 20032003 SCHED 2 ART 2

EDUCATION ACT 1998 S7

EDUCATION FOR PERSONS WITH SPECIAL EDUCATIONAL NEEDS ACT 2004 S13

CONSTITUTION ART 42

EDUCATION ACT 1998 S2

EDUCATION ACT 1998 S6

EDUCATION FOR PERSONS WITH SPECIAL EDUCATIONAL NEEDS ACT 2004 S1

EDUCATION FOR PERSONS WITH SPECIAL EDUCATIONAL NEEDS ACT 2004 S2

EDUCATION FOR PERSONS WITH SPECIAL EDUCATIONAL NEEDS ACT 2004 PREAMBLE

EDUCATION FOR PERSONS WITH SPECIAL EDUCATIONAL NEEDS ACT 2004 S13(3)

EDUCATION ACT 1998 S7(1)

EDUCATION ACT 1998 S7(4)

RYAN v AG 1965 IR 294

O'DONOGHUE v MIN EDUCATION 1996 2 IR 20

SINNOTT v MIN EDUCATION 2001 2 IR 545

EDUCATION ACT 1998 S7(2)

EDUCATION ACT 1998 S6(1)

CRONIN v MIN FOR EDUCATION & ORS 2004 3 IR 205 2004/11/2501

NAGLE v SOUTH WESTERN AREA HEALTH BOARD & ORS UNREP HERBERT 30.10.2001 2001/17/4608

O'CAROLAN v MIN FOR EDUCATION & ORS UNREP MACMENAMIN 15.6.2005 2005/46/9724 2005 IEHC 296

EDUCATION ACT 1998 S7(1)(a)

Abstract:

Constitutional law - Education - Autism - Appropriate education - Withdrawal of home tuition -Education Act 1998 - Article 42.4 of the Constitution

Facts: The applicant, an autistic child, suing through his parents sought to challenge the withdrawal by the respondent of a home tuition grant. The applicant alleged that the withdrawal constituted a blanket policy decision and was in breach of the provisions of Article 42.4 of the Constitution and the provisions of the Education Act 1998. The respondent contended that appropriate provision was being made otherwise for the educational needs of the applicant.

Held by O’ Neill J. that the constitutional obligation of the respondent pursuant to Article 42.4 of the Constitution corresponded with the functions of the Minister pursuant to the Education Act 1998. There was a binding and actionable duty on the Minister to provide appropriate tuition and training in socialisation skills. The applicant had not demonstrated any deficiencies in the proposed services and had failed to provide a breach of duty on the part of the respondent. The relief sought would be refused.

Reporter: E.F.

1 Judgment of O'Neill J. delivered the 29th day of July 2008.

2 The applicant was born on 20 ^th 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.

3 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.

4 By a letter dated 27 ^th 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."

5 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.

6 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.

7 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 22 ^nd of December 2005.

8 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 1 ^st 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.

9 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.

10 Your local SENO is …"

11 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.

12 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.

13 The first named respondent refused to revisit her decision to withdraw the home tuition grant and on 19 ^th 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:-

14 1. That s.7 of the Act of 1998 imposes a statutory duty...