Reform history

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

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

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

“Minister” means the Minister for Education and Science;

(*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.**—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—

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

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

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

(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—

(*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.

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

(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.

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

(*b*) dismiss the appeal.

(*a*) a psychologist;

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

(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.

(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.

(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.**—(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—

(*b*) dismiss the appeal.

(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.

(8) The fact that—

(*b*) a dispute is referred under *subsection (5)*,

(2) The preparation of an education plan under this section shall commence not later than 1 month from the direction concerned referred to in *subsection (1)* being given and be completed without undue delay and, in any case, not later than 2 months from its being commenced.

“relevant special educational needs organiser” means the special educational needs organiser with responsibility for the area in which the relevant school is situated or, as the case may be, for the particular category of school designated pursuant to *section 26(5)* into which the relevant school falls.

**9.**—(1) An education plan under *section 3* or *8* shall be in such form as the Council may determine from time to time and specify in a notice published, in such manner as it thinks fit, for the purposes of this subsection.

(10) Where a special educational needs organiser is consulted pursuant to *subsection (9)*, he or she may decide to reconvene the relevant team, or, as the organiser thinks fit, engage the assistance of one or more of the members of that team, or in the case of an education plan prepared under *section 3*, convene a group of persons (in this Act also referred to as a “team”), for the purpose of reviewing the content and implementation of the plan and may, as a consequence of that review, amend the plan.

**10.**—(1) The Council may—

(11) In this section “school” includes a centre for education (within the meaning of the Education Act 1998).

**11.**—(1) Without prejudice to *subsection (4)*, the principal of the relevant school shall review or cause to be reviewed at regular intervals, but in any case not less than once a year, the operation of each education plan for children who are attending the school—

(9) In this section “relevant school” and “relevant special educational needs organiser” have the same meaning as they have in *section 8*.

**12.**—(1) Parents may, in respect of their child, appeal to the Appeals Board against—

on the ground that the statement or description is incorrect or inadequate to meet the child's special educational needs, or

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

(*b*) dismiss the appeal.

(4) In this section “relevant school” has the same meaning as it has in *section 8*.

**13.**—(1) The Minister and the Minister for Health and Children shall each, with the consent of the Minister for Finance, out of moneys provided by the Oireachtas, provide such moneys and other resources as are determined by him or her for the purposes of the preparation and implementation of education plans prepared in respect of children with special educational needs.

(*b*) that the objective of the educational provision made by this Act is to ensure that children with special educational needs have the same right to avail of, and benefit from, appropriate education as do their peers who do not have such needs.

**14.**—(1) The board of management of a school shall—

(ii) consulted with regard to, and invited to participate in, the making of all decisions of a significant nature concerning their child's education.

(*d*) ensure that all relevant teachers and other relevant employees of the school are aware of the special educational needs of students.

(4) A request under *subsection (1)(c)* or *(3)* shall be complied with within such period (not being a period longer than 1 month from the date of the request) as the Council specifies in the request.

**15.**—(1) In preparing or reviewing an education plan, the principal of the relevant school or relevant special educational needs organiser shall, from the child's attaining such age as the principal or organiser considers appropriate, have regard to the provision which will need to be made to assist the child to continue his or her education or training on becoming an adult.

and the plan shall include measures to address any such effect.

**18.**—(1) The principal of a school may delegate the performance of any of the functions conferred on him or her by this Act to such teacher in the school as the principal considers appropriate and a function so delegated shall, accordingly, be performable by the teacher concerned.

(2) The relevant special educational needs organiser shall give all such advice and assistance as is reasonable to the principal and teachers of the school concerned in their performance of functions under this Act.

**19.**—(1) There shall stand established on the establishment day a body to be known as an Chomhairle Náisiúnta um Oideachas Speisialta or in the English language the National Council for Special Education, and which in this Act is referred to as the “Council”, to perform the functions conferred on it by or under this Act.

(3) *Schedule 1* to this Act shall apply to the Council.

**20.**—(1) The Council shall have the following functions:

(*a*) to disseminate to schools, parents and such other persons as the Council considers appropriate information relating to best practice, nationally and internationally, concerning the education of children with special educational needs;

(*c*) in consultation with schools and with such persons as the Council considers appropriate to plan for the integration of education for students with special educational needs with education for students generally;

(*f*) to assess and review the resources required in relation to educational provision for children with special educational needs;

(*g*) to ensure that a continuum of special educational provision is available as required in relation to each type of disability;

(*h*) to review generally the provision made for adults with disabilities to avail of higher education and adult and continuing education, rehabilitation and training and to publish reports on the results of such reviews (which reviews may include recommendations as to the manner in which such provision could be improved);

(*b*) make such provision as he or she considers necessary or expedient in relation to matters ancillary to or arising out of the conferral on the Council of functions under this subsection or the performance by the Council of functions so conferred.

**21.**—(1) The Council shall consist of a chairperson and 12 ordinary members.

(7) The members of the Council (including the chairperson and deputy chairperson) may be paid such allowances for expenses as the Minister, with the consent of the Minister for Finance, may determine.

**22.**—(1) There shall be, for the purpose mentioned in *subsection (2)*, a consultative forum, that is to say, a group of persons who shall be appointed in accordance with *subsections (3)* and *(5)* and who, as a collective body, are referred to subsequently in this section and in *section 23* as the “consultative forum”.

(8) The members of the consultative forum may be paid such allowances (if any) for expenses incurred by them in the discharge of their functions as may be determined by the Minister with the consent of the Minister for Finance.

**23.**—(1) The Council, after consultation with the consultative forum and the Minister shall, within 12 months from the establishment day, make a report (in this section referred to as the “implementation report”) to the Minister outlining the steps that must be taken in order that the provisions of this Act will be fully implemented within the period specified in the report.

(4) In preparing the implementation report, the Council shall also consider how the educational needs of children with special educational needs can, to the greatest extent practicable, be met pending the full implementation of this Act; the Council shall include in the report recommendations in that regard.

**24.**—(1) There shall be a chief executive of the Council who shall be appointed by the Council (and such officer shall be known, and is in this Act referred to, as “the Chief Executive Officer”).

(5) *Schedule 2* to this Act shall apply to the Chief Executive Officer.

**25.**—(1) Subject to the consent of the Minister and the Minister for Finance, the Council may, from time to time, appoint such and so many persons to be employees of the Council as the Council may determine.

(5) The Civil Service Commissioners Act 1956 and the Civil Service Regulation Acts 1956 to 1996 shall apply to the Chief Executive Officer and to employees of the Council.

**26.**—(1) The Council may appoint such and so many persons as it determines to perform the functions expressed by this Act to be performable by special educational needs organisers and each person who is so appointed shall be known, and in this Act is referred to, as a “special educational needs organiser”.

(6) The board of management, principal, teachers and other members of staff of a school shall give all such assistance as may reasonably be required by the special educational needs organiser in the performance by him or her of his or her functions.

**27.**—The National Council for Curriculum and Assessment shall consult with the Council prior to advising the Minister under section 41(2)(*f*) of the Education Act 1998.

**28.**—(1) Where the Minister is of the opinion that the Council has failed, neglected or refused to perform a function assigned to it under this Act or has failed to effectively perform any such function or otherwise has contravened this Act, the Minister may, after first advising the Council of his or her opinion and considering any explanation given in response, appoint a person to inquire into any matter giving rise to that opinion.

(9) The remuneration, if any, of a person appointed under *subsection (1)* or of a person or member of a body appointed under *subsection (6)* shall be determined by the Minister with the consent of the Minister for Finance and be paid out of moneys provided by the Oireachtas.

**29.**—(1) The Council shall keep, in such form as may be approved of by the Minister, all proper and usual accounts and records of all moneys received or expended by it.

(3) The Council shall cause copies of the accounts submitted under this section to the Minister, together with copies of the report of the Comptroller and Auditor General on those accounts, to be laid before each House of the Oireachtas.

**30.**—(1) The Chief Executive Officer shall, whenever required to do so by the Committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General, give evidence to that Committee on—

(2) In the performance of his or her duties under this section, the Chief Executive Officer shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.

**31.**—(1) The Chief Executive Officer shall, whenever required to do so by a Committee (or a subcommittee of such a committee) appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas (other than the Committee on Members' Interests of Dáil Éireann or the Committee on Members' Interests of Seanad Éireann) to examine matters relating to the Department of Education and Science, or to disabilities, give evidence to that Committee on the performance, by him or her, or by the employees of the Council, of his or her or their duties in relation to the Council's functions under this Act.

(2) In the performance of his or her duties under this section, the Chief Executive Officer shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.

**32.**—(1) The Council may accept gifts of money, land or other property upon such trusts and conditions, if any, as may be specified by the donor.

(3) The Council shall include in each report published by it under *section 34* details of all gifts accepted by it during the period to which the report relates.

**33.**—(1) The Council may establish committees to assist and advise it in relation to the performance of any of its functions.

(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.**—(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.

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

**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.**—(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.

(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.**—(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.**—(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—

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

(*a*) the assistance concerned is not required,

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

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

(*b*) dismiss the appeal.

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

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

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

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

**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.**—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.**—(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:

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

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

**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.**—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.**—(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.