Education for Persons with Special Educational Needs Act 2004

1. Interpretation.

1.—(1) In this Act, unless the context otherwise requires—

“Act of 1998” means the Education Act 1998;

“Appeals Board” shall be construed in accordance with section 36;

“child” means a person not more than 18 years of age;

“Council” shall be construed in accordance with section 19;

“education plan” shall be construed in accordance with section 3 or 8, as appropriate;

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“Minister” means the Minister for Education and Science;

“national association of parents” has the same meaning as it has in the Act of 1998;

“parent” has the same meaning as it has in the Act of 1998;

“prescribed” means prescribed by regulations made by the Minister under this Act;

“recognised school management organisations” has the same meaning as it has in the Act of 1998;

“recognised trade union or staff association” means a trade union or staff association recognised by the Minister for the purposes of negotiations that are concerned with the remuneration, conditions of employment, or working conditions of employees;

“relevant health board” means the health board in whose functional area the child or person concerned resides;

“school” means a recognised school (within the meaning of the Act of 1998);

“school year” has the same meaning as it has in the Act of 1998;

“special educational needs” means, in relation to a person, a restriction in the capacity of the person to participate in and benefit from education on account of an enduring physical, sensory, mental health or learning disability, or any other condition which results in a person learning differently from a person without that condition and cognate words shall be construed accordingly;

“special educational needs organiser” shall be construed in accordance with section 26;

“student” has the same meaning as it has in the Act of 1998;

“team” shall be construed in accordance with section 8, 9 or 11 as appropriate;

“voluntary body” has the same meaning as it has in the Comhairle Act 2000.

(2) In this Act—

(a) a reference to a section is a reference to a section of this Act, unless it is indicated that reference to some other enactment is intended,

(b) a reference to a subsection, paragraph or subparagraph is a reference to a subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended,

(c) a reference to any other enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended, extended or adapted by or under any subsequent enactment.

2. Inclusive education.

2.—A child with special educational needs shall be educated in an inclusive environment with children who do not have such needs unless the nature or degree of those needs of the child is such that to do so would be inconsistent with—

(a) the best interests of the child as determined in accordance with any assessment carried out under this Act, or

(b) the effective provision of education for children with whom the child is to be educated.

3. Preparation of education plan by school (including steps preliminary to such preparation).

3.—(1) Subsection (2) applies where the principal of a school—

(a) having been notified by the parents of a student in the school that they are of the opinion referred to in this paragraph and been requested by them to take the measures specified in subsection (2), considers that opinion to be well founded, namely, an opinion that the student is not benefiting from the education programme provided in the school to children who do not have special educational needs to the extent that would be expected of the student, or

(b) otherwise forms such an opinion in respect of a student in the school.

(2) Where this subsection applies, the principal of the school shall take such measures as are practicable to meet the educational needs of the student concerned.

(3) Where the principal of a school, having taken the measures referred to in subsection (2), is of the opinion that the student concerned is still not benefiting from the education programme provided in the school and that his or her difficulty in doing so may arise from his or her having special educational needs, the principal, after consultation with the parents of the student, shall, subject to subsection (6), arrange for an assessment of the student to be carried out.

(4) Without prejudice to section 5(5), an assessment referred to in subsection (3) shall be—

(a) commenced as soon as practicable, and in any case not later than 1 month, after the principal has reached the opinion referred to in that subsection,

(b) completed as soon as practicable, and in any case not later than 3 months, after the principal has reached that opinion, and

(c) carried out in accordance with such guidelines relating to persons who are to carry out assessments under this section and the form that those assessments are to take as may be issued from time to time by the Council,

and references in this section to the carrying out of such an assessment include references to the preparation of a statement of the findings in relation to the assessment.

(5) Where an assessment carried out in accordance with subsection (4) establishes that the student concerned has special educational needs the principal shall, subject to subsection (11), within 1 month from the receipt by him or her of the assessment, cause a plan to be prepared for the appropriate education of the student (in this Act referred to as an “education plan”).

(6) Where the principal of a school is of the opinion, having regard to any guidelines that may be issued by the Council from time to time under subsection (8), that the arrangement of an assessment under subsection (3) of a student is not practicable he or she shall request the Council to arrange for an assessment of the student under section 4.

(7) If the Council accedes to a request under subsection (6), section 4, with the necessary modifications, and section 5 shall apply accordingly.

(8) The Council may from time to time issue guidelines to principals of schools as to the matters they shall have regard to before forming an opinion of the kind referred to in subsection (6).

(9) In relation to the preparation of an education plan under subsection (5), the principal shall ensure that—

(a) the parents of the child, the special educational needs organiser with responsibility for the school concerned and such other persons as the principal considers appropriate are consulted and, in the case of the parents of the child, their involvement in the preparation is facilitated, and

(b) guidelines for the time being in force under section 9(3) are complied with unless he or she decides, with the consent of that special educational needs organiser, that there are good and substantial reasons for their not being complied with.

(10) Immediately after an educational plan has been prepared under subsection (5) the principal of the school shall furnish to the parents of the child concerned and the special educational needs organiser with responsibility for the school a notice in writing of that fact, together with a copy of the plan.

(11) Where the principal of a school is of the opinion that—

(a) having regard to the nature and extent of a child's special educational needs as established by an assessment under this section, the preparation of an education plan under subsection (5) in accordance with the guidelines for the time being in force under section 9(3) will not meet the child's special educational needs, or

(b) whether the opinion is formed in consequence of a review under section 11 or otherwise, an education plan prepared under subsection (5) in respect of a child is not meeting those needs of the child and the taking of any steps by a special educational needs organiser under section 11 on foot of any report by the principal under subsection (3) of that section is unlikely to result in those needs being met,

the principal shall request the Council to prepare an education plan under section 8 in respect of the child.

(12) If the Council accedes to a request under subsection (11), then subsections (3) to (5) of section 8 shall apply and, in the case of paragraph (b) of subsection (11), the education plan prepared by the Council under section 8 shall supersede the education plan referred to in that paragraph.

(13) If the Council refuses to accede to a request under subsection (6) or (11), then the principal, or the parents of the child concerned, may appeal against that refusal to the Appeals Board.

(14) On the hearing of an appeal under subsection (13), the Appeals Board may—

(a) allow the appeal and give a direction to the Council requiring it, as appropriate, to—

(i) arrange for an assessment of the child concerned to be carried out under section 4, or

(ii) cause to be prepared an education plan in respect of the child concerned under section 8,

or

(b) dismiss the appeal.

(15) The Council shall comply with a direction given to it under subsection (14).

4. Assessment of child by or on behalf of health board or Council.

4.—(1) Where the F2[Health Service Executive] is of the opinion that a child who is not a student has or may have special educational needs it shall cause an assessment under this section of that child to be carried out.

(2) Where the Council is of the opinion that a child who is a student has or may have special educational needs it shall, unless an assessment under section 3 of the child is being or has been carried out, cause an assessment under this section of that child to be carried out.

(3) Where the parents of a child are of the opinion that the child has or may have special educational needs they may request—

(a) the relevant F2[Health Service Executive], or

(b) in the case of a child who is a student, the Council,

to cause an assessment under this section of the child to be carried out.

(4) Subject to subsection (5), within 1 month from the receipt of a request under subsection (3), the F3[Health Service Executive] or the Council shall cause the assessment to be commenced and thereafter to be completed without undue delay.

(5) F4[The Health Service Executive] or the Council may refuse to accede to a request under subsection (3) if—

(a) it is of the opinion that there are insufficient grounds to support the requesters' opinion that the child has special educational needs, or

(b) an assessment under this Act has been carried out in respect of the child in the 12 months prior to the date of the request.

(6) An assessment for the purposes of this section shall include an evaluation and statement of the nature and extent of the child's disability (including in respect of matters that affect the child overall as an individual) and an evaluation and statement of the services which the child will need so as to be able to participate in and benefit from education and, generally, to develop his or her potential.

(7) If F5[the Health Service Executive] or the Council refuses to accede to a request under subsection (3) the parents of the child concerned may appeal against that refusal to the Appeals Board; such an appeal shall be determined by the Appeals Board within 6 weeks from the date that it receives the appeal.

(8) On the hearing of an appeal under subsection (7), the Appeals Board may—

(a) allow the appeal and direct the F6[Health Service Executive] or the Council, as the case may be, to cause to be carried out an assessment under this section of the child, or

(b) dismiss the appeal.

5. Mode of assessment under section 3 or 4.

5.—(1) An assessment under section 4 shall be carried out with the assistance of persons possessing such expertise and qualifications as F7[the Health Service Executive] or the Council considers appropriate; those persons may, in the discretion of F7[the Health Service Executive] or the Council, include one or more of the following:

(a) a psychologist;

(b) a medical practitioner;

(c) the principal of the school which the child is attending or a teacher of that school nominated by the principal;

(d) an appropriately qualified social worker; and

(e) a therapist who is suitably qualified to provide support services in respect of the special educational needs of the child.

(2) F8[The Health Service Executive], the Council or a principal, as appropriate, shall facilitate, in a manner that is consistent with the assessment being carried out effectively, the participation by the parents of the child concerned in the carrying out of an assessment under section 3 or 4.

(3) Before causing an assessment under section 4 (other than pursuant to a request under subsection (3) of that section) to be carried out, the F9[Health Service Executive] or the Council shall give notice in writing to the parents of the child of the intention to do so and the reasons therefor and, subject to subsection (4), shall not cause the assessment to be carried out without the consent in writing of the parents.

(4) Where the parent of a child fails or refuses to give his or her consent, within such period as may be specified by the F9[Health Service Executive] or the Council, to the carrying out of an assessment under section 4 to which subsection (3) applies, the F9[Health Service Executive] or the Council, as the case may be, may apply to the Circuit Court for an order dispensing with the requirement under subsection (3) for the parent's consent and the Circuit Court may, on the hearing of the application, make such an order if it considers it in the best interests of the child to do so.

(5) An assessment under section 3 or 4 shall be carried out in a manner which conforms to such standards as may from time to time be determined, after consultation with the Minister, by a prescribed body, that is to say, a body standing prescribed by regulations made by the Minister for Health and Children for the purposes of its determining the standards that assessments under those sections must conform to.

(6) In carrying out an assessment under section 4, the F9[Health Service Executive] or the Council, as appropriate, shall have regard to any relevant assessment of the child concerned that is available to it at that time.

(7) A statement of the findings in relation to an assessment that has been carried out under section 4 and any relevant documents relating to that assessment shall be made available immediately to the parents of the child concerned after that statement has been prepared.

(8) F10[The Health Service Executive] or the Council, as the case may be, shall make available all or part of that statement to such persons engaged in the education of the child as it considers appropriate, having regard to the need to ensure that such persons are informed of the child's educational needs; the parents of the child shall be informed by F10[the Health Service Executive] or the Council of the fact of its having so made available all or part of that statement, and of the identity of the person or persons to whom it has been made available, as soon as may be after it has done so.

(9) An application under subsection (4) to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the child concerned resides.

6. Appeals in relation to assessments.

6.—(1) Parents may, in respect of their child, appeal to the Appeals Board against an assessment made under section 3 or 4 in relation to the child on the ground that it was not carried out in a manner which conforms with the standards determined under section 5(5).

(2) The Appeals Board shall hear and determine an appeal under this section within 2 months after the making thereof and such a determination may be one either to—

(a) allow the appeal and give such direction as it considers appropriate to the principal, the F11[Health Service Executive] or the Council, as appropriate, (which may include a direction requiring a fresh assessment under section 3 or 4 to be carried out in relation to the child), or

(b) dismiss the appeal.

(3) A principal of a school, F12[the Health Service Executive] or the Council shall comply with a direction given to him or her or it under subsection (2).

7. Provision of services.

7.—(1) In the case of a child who is not a student, the F13[Health Service Executive] shall, subject to subsection (2), provide to the child such of the services identified in the assessment carried out under section 4 in relation to the child as are necessary to enable him or her to participate in and benefit from education.

(2) Where, in performing its functions under subsection (1), F14[the Health Service Executive] is of the opinion that particular services can most effectively be provided for by the Council, it shall inform the Council of that opinion by notice in writing and, upon being so informed, the Council shall, subject to subsection (5), provide those services to the child concerned.

(3) In the case of a child who is a student the Council shall, subject to subsection (4), ensure that there are provided to him or her such of the services identified in the education plan prepared in relation to the child as are necessary to enable him or her to participate in and benefit from education.

(4) Where, in performing its functions under subsection (3), the Council is of the opinion that particular services can most effectively be provided for by the F15[Health Service Executive], it shall inform the F15[Health Service Executive] of that opinion by notice in writing and, upon being so informed, the F15[Health Service Executive] shall, subject to subsection (5), provide those services in respect of the child concerned.