Education for Persons with Special Educational Needs Act 2004

as the Council may determine, subject to the consent of the Minister.

• (5) The Council may, subject to this Act, determine the terms of reference and regulate, by standing orders or otherwise, the procedures and business of a committee including the filling of casual vacancies, but, subject to any such regulation, a committee may regulate its own procedures.

• (6) A committee shall appoint, from time to time, a chairperson from among its members.

• (7) The Chief Executive Officer may—

• (a) opt to be a member of a committee, or

• (b) in lieu of his or her opting to be such a member, may nominate, with that other's consent, another to be such a member,

and where the Chief Executive Officer so opts or nominates another, the Chief Executive Officer or the other person, as the case may be, shall be deemed to stand appointed as a member of the committee but shall not be entitled to cast a vote in respect of any matter falling to be decided by the committee.

• (8) A member of a committee may be removed by the Council at any time for stated reasons.

• (9) The Council may at any time dissolve a committee established by it.

• (10) The Council shall have regard to the desirability of such gender balance in the membership of a committee under this section as the Minister considers appropriate and determines, from time to time, when making appointments to a committee.

• (11) A committee shall provide the Council with such information as the Council may from time to time require, in respect of the committee's activities and operation, for the purposes of the performance by the Council of its functions.

34. Annual report and information.

34.—(1) Subject to subsection (2), the Council shall prepare and publish, in such form and manner as it considers appropriate, a report of its activities and proceedings under this Act.

• (2) A report under subsection (1) shall be prepared—

• (a) in the case of the first such report, at the end of 1 year after the establishment day, and relate to the Council's activities and proceedings under this Act during that year, and

• (b) thereafter, at the end of 1 year following the preparation of the preceding report, and relate to the Council's activities and proceedings under this Act during the preceding 12 months.

• (3) The Council shall provide the Minister with a copy of the report under subsection (1) and the Minister shall cause the report to be laid before each House of the Oireachtas.

• (4) The Council shall provide the Minister with such information as the Minister may from time to time require.

35. Establishment day.

35.—The Minister shall within one year from the passing of this Act by order or orders appoint a day to be the establishment day for the purposes of sections 19 and 36 and the day that is so appointed for the purposes of one of those sections may be different to that which is so appointed for the other of them.

36. Special Education Appeals Board.

36.—(1) On the establishment day there shall stand established the Special Education Appeals Board (in this Act referred to as the “Appeals Board”) to hear and determine appeals made pursuant to this Act.

• (2) The Appeals Board may sit in divisions of itself to hear appeals.

• (3) In hearing and determining an appeal under this Act, the Appeals Board shall act in accordance with such procedures as may be determined from time to time by it, with the consent of the Minister, and such procedures shall ensure that—

• (a) the parties to the appeal are assisted, through mediation, to reach agreement on the matters the subject of the appeal where the Appeals Board is of the opinion that reaching such agreement is practicable in the circumstances,

• (b) hearings are conducted with the minimum of formality consistent with giving each of the parties a fair hearing,

• (c) the Appeals Board performs its functions in accordance with the policies referred to in section 13(2).

• (4) The Appeals Board shall be independent in the performance of its functions.

• (5) The Appeals Board shall consist of a chairperson and such number of ordinary members as may be determined, by the Minister.

• (6) The chairperson and ordinary members of the Appeals Board shall be appointed by the Minister from among persons who have a special interest in or knowledge of education and in particular the education of persons with special educational needs.

• (7) The term of office of the chairperson and the ordinary members of the Appeals Board shall be for such period as shall be determined by the Minister.

• (8) The chairperson or an ordinary member of the Appeals Board may resign by letter addressed to the Minister.

• (9) The chairperson or an ordinary member of the Appeals Board may be removed from office by the Minister.

• (10) The chairperson and ordinary members of the Appeals Board shall be paid such allowances for expenses as the Minister, with the consent of the Minister for Finance, may determine.

• (11) The Appeals Board may, with the consent of the Minister given with the concurrence of the Minister for Finance, appoint such and so many persons to be employees of the Appeals Board as the Board considers necessary to assist the Board in the performance of its functions and each person so appointed shall hold office on such terms and receive such remuneration as the Appeals Board with the consent of the Minister for Finance determines.

37. Report of Appeals Board.

37.—(1) The Appeals Board shall submit a report of its activities and particulars of its accounts to the Minister at such intervals (not being less than once a year) and in such manner and format, as the Minister directs.

• (2) The Minister shall cause copies of a report under subsection (1) to be laid before each House of the Oireachtas.

38. Provision for mediation in certain cases.

38.—(1) This section applies to cases in which a person with special educational needs or, if the person with such needs is a minor, a parent of the person—

• (a) makes a complaint to the Minister that the special educational needs of the person are not being met, or

• (b) proposes to bring, or has brought, proceedings in any court seeking redress in respect of an alleged failure by the Minister or the State to meet those needs of the person (whether the failure to be alleged or alleged in the proceedings is expressed as amounting to a breach of Article 42 of the Constitution, a failure to comply with this Act or howsoever otherwise).

• (2) The Minister may make regulations (“the regulations”) as respects cases to which this section applies enabling—

• (a) a complaint mentioned in subsection (1)(a), or

• (b) an alleged failure by the Minister or the State mentioned in subsection (1)(b),

to be the subject of mediation.

• (3) The reference in subsection (2) to a matter being the subject of mediation is a reference to the matter being referred, in accordance with procedures specified in the regulations, to an individual or body appointed in accordance with the regulations (“the mediator”) for the purpose of mediation being conducted by the mediator in relation to it, that is to say, mediation conducted with a view to resolving the issue or issues the subject of the complaint or the proceedings or the proposed proceedings concerned.

• (4) The regulations shall provide that, for the purpose of resolving that issue or those issues, the mediator shall—

• (a) inquire fully into each relevant aspect of the issue or issues,

• (b) provide to, and receive from, the parties to the mediation such information and generally make such suggestions to each of them as the mediator considers appropriate, and

• (c) on completion of any hearing (or the last of them where there is more than one hearing) conducted for that purpose, prepare and furnish to each of the parties a report in relation to the mediation,

and the regulations shall also contain the provisions referred to in subsection (5).

• (5) Those provisions are—

• (a) a provision prohibiting, subject to such exceptions as may be specified in the regulations, the disclosure of any statements made or information given by the parties to the mediation for the purpose of the mediation,

• (b) a provision prohibiting, subject to such exceptions as may be specified in the regulations, the disclosure of the report referred to in subsection (4)(c) to persons other than the parties to the mediation,

• (c) provisions specifying procedures with respect to the appointment of the mediator, and those provisions shall enable only—

• (i) a body which is independent of the persons who will be parties to the mediation to make such an appointment (and such provision shall be in addition to any provision made by the regulations under subsection (6)),

• (ii) an individual or body who or which is independent of those persons to be the subject of such an appointment,

• (d) a provision specifying that mediation shall not be conducted pending the hearing and determination of an appeal under this Act that lies in respect of the matter concerned, and

• (e) such provisions consequential on, or incidental to, the foregoing provisions or the provisions of subsection (3) or (4) as the Minister may consider necessary or expedient.

• (6) The regulations may also provide that only a body falling within a class of bodies standing recognised for the time being by the Minister for the purposes of the provision referred to in subsection (5)(c)(i), may, subject to that provision, make an appointment of the kind referred to in that provision.

• (7) A court hearing proceedings such as are referred to in subsection (1)(b), may, in making any decision as to the costs of those proceedings, have regard to, if such be the case—

• (a) that the person bringing those proceedings refused to participate in a mediation provided for by the regulations in relation to the issue or issues the subject of those proceedings, or

• (b) that that person did not participate in good faith in such a mediation, and, for the purpose of determining whether that person did not so participate in good faith, the court may have regard to the report referred to in subsection (4)(c) prepared in relation to the mediation.

• (8) In this section “body” means a body corporate or an unincorporated body of persons.

39. Duty of health boards.

39.—(1) Where it appears to the Council that F29[the Health Service Executive] could, by taking specified action, assist in the preparation or implementation of an education plan in respect of a particular child or assist more generally in the performance of the Council of its functions, then it may, by notice in writing, request the assistance of that board, specifying the action in question.

• (2) Before making a request under subsection (1), the Council shall consult with F30[the Health Service Executive.]

• (3) F31[The Health Service Executive] shall comply with the request unless it considers that—

• (a) the assistance concerned is not required,

• (b) compliance with the request would not be compatible with its functions or duties or would unduly prejudice the performance of any of its functions, or

• (c) having regard to the resources available to the board it is not possible for it to comply with the request.

• (4) Where F32[the Health Service Executive] decides not to comply with a request it shall give notice in writing to the Council of that decision and the reasons therefor.

• (5) The Council may appeal against a decision of F33[the Health Service Executive] referred to in subsection (4) to the Appeals Board.

• (6) On the hearing of an appeal under subsection (5), the Appeals Board may—

• (a) allow the appeal and direct F34[the Health Service Executive] to comply with the request, the subject of the appeal, or

• (b) dismiss the appeal.

• (7) F35[The Health Service Executive] shall comply with a direction given to it under subsection (6)(a).

40. Amendment of section 7 of Act of 1998.

40.—Section 7 of the Education Act 1998 is amended by inserting the following subsections after subsection (4):

• “(5) In carrying out his or her functions in respect of the provision, planning and co-ordination of support services, the Minister may, following consultation with the Minister for Health and Children, request the assistance of a relevant health board.

• (6) A health board of which a request under subsection (5) is made shall comply with the request.”.

41. Maintenance of records.

41.—(1) The Council shall keep and maintain records for the purpose of—

• (a) identifying persons to whom special educational and support services are being provided,

• (b) identifying schools and other places where such services are provided to persons with special educational needs, and

• (c) planning the provision of special educational and support services.

• (2) In performing its functions under subsection (1) the Council shall, to the greatest extent practicable, co-ordinate its system of record-keeping with the systems of record-keeping maintained by F36[the Health Service Executive] and any other relevant public bodies.

42. Regulations.

42.—(1) The Minister may make regulations prescribing any matter which is referred to in this Act as prescribed or to be prescribed or in relation to any matter referred to in this Act as the subject of regulations or for the purposes of enabling any provision of this Act to have full effect.

• (2) Every regulation under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

43. Grants to Council and Appeals Board.

43.—The Minister may, in each financial year of the Council and of the Appeals Board, pay to the Council and the Appeals Board, out of moneys provided by the Oireachtas, a grant of such amount as he or she, with the consent of the Minister for Finance, determines towards the expenses of the Council or the Appeals Board, as the case may be, in the performance of its functions.

44. Service of notices.

44.—(1) A notice under this Act shall, subject to subsection (2), be addressed to the person concerned by name, and may be served on or given to the person in one of the following ways:

• (a) by delivering it to the person;

• (b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;

• (c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.

• (2) Where a notice under this Act is to be served on or given to a person who is the owner or occupier of land and the name of the person cannot be ascertained by reasonable inquiry, it may be addressed to the person by using the words the owner or, as the case may require, the occupier.

• (3) For the purposes of this section, a company within the meaning of the Companies Acts 1963 to 2001, shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.

45. Dissolution of body established under section 54 of Act of 1998.

45.—(1) The National Council for Special Education (referred to in subsequent sections of this Act as the “former Council”) established by order under section 54 of the Act of 1998 is dissolved.

• (2) References to the National Council for Special Education in an enactment (other than this Act) or in an instrument made thereunder or in the memorandum of association or articles of association of any company (within the meaning of the Companies Acts 1963 to 2001) or any other legal document, shall be construed, on and after the commencement of this section, as references to the Council.

46. Legal proceedings pending against former Council.

46.—Where, immediately before the commencement of this section, any legal proceedings are pending in any court or tribunal to which the former Council is a party, the name of the Council shall be substituted in the proceedings for that of the former Council or, as the case may be, such trustee or agent thereof, or added in those proceedings as may be appropriate, and those proceedings shall not abate by reason of the substitution.

47. Transfer of property rights and liabilities of former Council.

47.—(1) The following shall be and are, by virtue of this section, transferred to the Council—

• (a) all property and rights relating to such property held or enjoyed immediately before the commencement of this section by the former Council or any trustee or agent thereof acting on its behalf,

• (b) all liabilities incurred before such commencement by the former Council or any trustee or agent thereof acting on its behalf that had not been discharged before such commencement,

and, accordingly, without any further conveyance, transfer or assignment—

• (i) the said property, real and personal, shall, on such commencement, vest in the Council for all the estate, term or interest for which, immediately before such commencement, it was vested in the former Council but subject to all trusts and equities affecting the property and capable of being performed,

• (ii) those rights shall, as and from such commencement, be enjoyed by the Council, and

• (iii) those liabilities shall, as and from such commencement, be liabilities of the Council.

• (2) All moneys, stocks, shares and securities transferred to the Council by this section which, on the commencement of this section, are standing in the name of the former Council or any trustee or agent thereof shall, upon the request of the Council, be transferred into its name.

• (3) Every right and liability transferred to the Council by this section may, on or after the commencement of this section, be sued on, recovered or enforced by or against the Council in its own name and it shall not be necessary for the Council to give notice to the person whose right or liability is transferred by this section of the transfer.

48. Bonds, guarantees, contracts, etc., of former Council.

48.—Every bond, guarantee or other security of a continuing nature made or given by or on behalf of the former Council to any person or given by any person to and accepted by or on behalf of the former Council and every contract or agreement made between the former Council or any trustee or agent thereof acting on its behalf, and any other person and in force but not fully executed and completed immediately before the commencement of this section shall continue in force on and after such commencement and shall be construed and have effect as if the name of the Council was substituted therein for that of the former Council or, as appropriate, any trustee or agent thereof acting on its behalf, and shall be enforceable by or against the Council.

49. Transfer of staff of former Council.

49.—Every person who, immediately before the commencement of this section, is an employee of the former Council shall, on such commencement, become and be an employee of the Council and the rights and entitlements in respect of tenure, remuneration, fees, allowances, expenses and superannuation enjoyed on the commencement of this section by that person shall not, by virtue of the operation of this Act, be any less beneficial than those rights and entitlements enjoyed by that person immediately before such commencement.

50. Plans, reports, etc., under Act privileged.

50.—Every plan, report and assessment prepared or made under this Act shall, for the purposes of the law of defamation, enjoy qualified privilege.

51. Expenses.

51.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

52. Amendment of Act of 1998.

52.—Section 2(1) of the Act of 1998 is amended by substituting the following definition for the definition of “disability”:

“ ‘disability’ 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;”.

53. Short title and commencement.

53.—(1) This Act may be cited as the Education for Persons with Special Educational Needs Act 2004.

• (2) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

SCHEDULE 1 Membership and Meetings of Council

Section 19.

• (2) The seal of the Council shall be authenticated by the signature of—

• (a) the chairperson of the Council or other member of the Council authorised by the Council to act in that behalf, and

• (b) an employee of the Council authorised by the Council to act in that behalf.

• (3) Judicial notice shall be taken of the seal of the Council and every document purporting to be an instrument made by the Council and to be sealed with the seal of the Council (purporting to be authenticated in accordance with subparagraph (2)) shall be received in evidence and be deemed to be such instrument without further proof unless the contrary is shown.

• (2) The Council may at any time, with the consent of the Minister, for stated reasons, remove a member from office, other than the chairperson.

• (3) A member (other than the chairperson) may at any time resign from office as a member by notice in writing to the chairperson and the resignation shall take effect on the date of the meeting of the Council next held after receipt by the Council of the notice.

• (4) The chairperson may at any time resign from office as a member by notice in writing to the Chief Executive Officer and the resignation shall take effect on the date of the meeting of the Council next held after receipt by the Chief Executive Officer of the notice.

• (5) A member who is absent from all meetings of the Council for 6 consecutive months, unless the absence was due to illness or was approved of by the Council, shall cease to be a member at the expiration of that period.

• (6) The Minister, when appointing a member, shall specify the term of office of the member which shall not exceed 4 years.

• (7) A member shall not serve more than 2 terms of office that are consecutive terms of office.

• (8) Where a casual vacancy occurs among the members the Council shall notify the Minister who shall appoint a person to fill such a casual vacancy and a person so appointed shall, subject to this Schedule, hold office for the remainder of the term of office of the member whose death, resignation, removal from office or ceasing for any other reason to hold office occasioned the casual vacancy.

• (2) The deputy chairperson shall hold office for such term as may be specified by the Council at the time of his or her appointment, unless—

• (a) he or she resigns the office of deputy chairperson, or

• (b) the Council by a resolution, of which not less than 7 days notice of the intention to propose is given to each member and for which not less than two thirds of the members vote, removes the deputy chairperson.

• (3) The deputy chairperson may at any time resign from office by notice in writing to the Council and the resignation shall take effect on the date of the meeting of the Council next held after the receipt by the Council of the notice.

• (4) Where, at an election of the deputy chairperson, 2 or more persons receive an equal number of votes, it shall be determined by lot which of those persons shall be deputy chairperson.

• (2) The Council shall hold at least 6 meetings in each year and such and so many other meetings and at such times as the chairperson may determine.

• (3) The quorum for a meeting of the Council shall be 4.

• (4) At least 3 days before a meeting of the Council notice of the time and place of the meeting shall be sent to each member of the Council signed—

• (a) by the Chief Executive Officer or chairperson, or

• (b) if the meeting is convened by members, by those members.

• (5) If the meeting is convened by members, the notice convening the meeting shall specify the business to be transacted at that meeting.

• (6) At a meeting of the Council—

• (a) the chairperson shall, if present, be the chairperson of the meeting, or

• (b) if and so long as the chairperson is not present, or if the office of chairperson is vacant, the deputy chairperson shall, if present, be the chairperson of the meeting, or

• (c) if and so long as the chairperson is not present or the office of chairperson is vacant, and the deputy chairperson is not present or the office of deputy chairperson is vacant, the members who are present shall choose one of their number to preside at that meeting.

• (2) The names of all members present at a meeting of the Council shall be recorded in the minutes of the proceedings of the meeting.

• (3) At a meeting of the Council every act of the Council and every question coming before the Council shall be determined by a majority of the votes of members (including the chairperson) present and voting in relation to the act or question and, in the case of an equal division of votes on any act or question arising at a meeting of the Council (other than the election of the chairperson or deputy chairperson), the chairperson or other person presiding at that meeting shall have a second or casting vote.

SCHEDULE 2 The Chief Executive Officer

Section 24.

• (2) Notwithstanding any such delegation, the Chief Executive Officer shall at all times remain accountable to the Council for the performance of the functions so delegated.