11. The Education Act, 1998.
This Act is an important landmark in Irish life as it formalises, for the first time in the history of the State a national consensus in education distilled during a decade of intense public debate, negotiation and compromise. As a result of the coming into force of this Act a considerable shift in the powers and potentialities in education has moved towards the State. As a consequence all recognised schools and centres for education have been regulated by the Act.
Today we will look at the Act, not from the point of view of mainstream education but, from the perspective of Youthreach Centres only. In doing so we are at a significant disadvantage that there has been no judicial interpretation of the Act of which I am aware. As we have seen, it is one of the functions of the judges to interpret the provisions of statutes when they are challenged or come up in court cases. They do so in accordance with the established rules of statutory interpretation so we can only speculate as to the meaning of some rather obscure passages in the legislation. Courts will take account of relevant constitutional provisions and the intention of the Oireachtas when drafting the relevant section.
11.1 ‘Disability’ and ‘Special Education Needs’
Firstly, the Act makes provision in the interests of the common good for the education of every person in the State, including any person with a disability or who has other special educational needs (SEN). Clearly this encompasses the students in YOUTHREACH Centres who frequently suffer from “disability” or SEN. If we turn to section 2 of the Act, we find the meaning of the terms used in the Act. Here “disability” means:
the total or partial loss of a person’s bodily or mental functions, including the loss of a part of the person’s body, or
the presence in the body of organisms causing, or likely to cause, chronic disease or illness, or
the malfunction, malformation or disfigurement of a part of a person’s body, or
a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;
Let us look at the term ‘special educational needs’ on p.8 of the Act. It says that ‘special educational needs’ means the educational needs of students who have a disability and the educational needs of exceptionally able students).
Now we turn to consider the term “Student”, which is also defined – ‘student’, in relation to a school, means a person enrolled at the school and in relation to a centre for education, means a person registered as a student in that centre.
11.2 Entitlement to Support Services
So those registered in Youthreach Centres are students under the Act. If we turn to section 7 of the Act we find the functions of the Minister. One of those ministerial functions is “ensure, subject to the provisions of this Act, that there is made available to each person resident in the State, including a person with a disability or who has other special educational needs, support services and a level and quality of education appropriate to meeting the needs and abilities of that person”.
Another function is under s.7 (2)(a) – to provide funding to each recognised school and centre for education and to provide support services to recognised schools, centres for education, students, including students who have a disability or who have other special educational needs, and their parents, as the Minister considers appropriate and in accordance with this Act.
What does the term ‘support services’ mean? If we look at page 8, we find that definition ‘support services’ means the services which the Minister provides to students or their parents, schools or centres for education in accordance with section 7 and shall include any or all of the following:
assessment of students;
guidance and counselling services
technical aid and equipment, including means of access to schools, adaptations to buildings to facilitate access and transport, for students with special needs and their families;
provision for students learning through Irish sign language or other sign language, interpreting services;
speech therapy services;
provision for early childhood, primary, post-primary, adult or continuing education to students with special needs otherwise than in schools or centres for education;
teacher welfare services;
library and media services;
school maintenance services;
examinations provided for in Part VIII;
curriculum support and staff advisory services, and
such other services as are specified by this Act or considered appropriate by the Minister;
11.3 Who will deliver these services?
So we have established that Youthreach students have a right under the Act to “support services”. But who is to prioritise and deliver these rights to these students who have not secured the constitutional “certain minimum education'”? Who will ensure that such students are with SEN and or a “disability” are:
referred for assessment of their SEN and/or disability;
have their SEN and/or disability identified or diagnosed;
receive treatment for the SEN/disability.
Will this duty fall on the inspectors or on the Education Welfare Service? I will revisit this issue below.
Apart from the constitutional and statutory obligations to such students already mentioned, there may well be a common law duty of care to them which needs to be discharged. It has been established in the English courts in recent years that Local Education Authorities and head teachers have a duty of care under the common law to children with SEN. In the X minors v. Bedfordshire  2 AC 633 Lord Browne-Wilkinson stated that a head teacher owes “a duty of care to exercise the reasonable skills of a headmaster in relation to such [a child’s] educational needs” and a special advisory teacher brought in to advise on the educational needs of a specific pupil, particularly if he knows that his advice will be communicated to the pupil’s parents, “owes a duty to the child to exercise the skill and care of a reasonable advisory teacher”. A similar duty on specific facts may arise for others engaged in the educational process e.g. a tutor or organiser in a Youthreach Centre or an inspector or psychologist employed by the Department of Education and Science.
Of the recent English cases, the most significant is the House of Lords case of Pamela Phelps i.e. Phelps v. Mayor of the London Borough of Hillingdon, unreported 27th July 2000 Even though it is now known that Pamela was dyslexic almost from birth, and she had been referred to a psychologist for assessment, dyslexia was not diagnosed. Despite serious underfunctioning in reading and spelling, none of the teachers or specialists at any point appear to have thought she was dyslexic. Pamela was provided with special needs tuition but this was not specific to her dyslexic needs. Shortly before leaving school in 1990 Pamela was assessed, pursuant to arrangements made and paid for by her parents, by a clinical and educational psychologist at the Dyslexia Institute who reported she was dyslexic. At this point, she had a reading age of 8.2 years.
After leaving school, Pamela obtained a post but was later dismissed as she had problems with literacy, which she alleged arose from the failure to diagnose her dyslexia and particularly from the failure in that regard of the headteacher and the psychologist employed by the LEA. Pamela, who was unemployed at the time of the hearing, issued proceedings against Hillingdon in 1994 claiming damages for breach of statutory duty under the Education Acts 1994 and/or 1981 and the 1983 Regulations and alternatively in negligence. Her claim was successful under negligence only and the claim under the statutes failed.
One of the main lessons to be learned here is that if a student has a disability or SEN (as defined under the 1998 Act), then referral onwards is a crucially important step. From the point of view of psychologists administering the appropriate tests is another.
11.4 The Inspectorate
Part III of the Act which deals with the Inspectorate is pivotal to the working of the Act. Here, as you will see, the Act is more prescriptive and there is no discussion with the parties in education: ‘The Minister shall appoint…’ ‘The Minister shall include… ‘ etc. The functions of an Inspector are laid down in s13 (3)[p.16]. From s13 (2) it is clear that some inspectors will also hold qualifications as psychologists and these persons will have a pivotal role to play in education in further years.
We turn to consider the functions of the inspectors. Section 13 (5) (ii) provides that [an inspector] may conduct assessments of the educational needs of students in recognised schools… ‘ In short, the delivery of support services for students in Centres for Education is less than clear. How does the Minister propose to discharge his function under s7 (1) “to ensure, subject to the provision of this Act…”