‘Education essentially is the teaching and training of a child to make best possible use of his inherent and potential capacities, physical, mental and moral.’ (O’Dalaigh 1968)
‘In my opinion the ultimate criterion in interpreting the State’s constitutional obligation to provide for primary education of the grievously disabled is “need” and not “age”. If a child’s disability is such that he/she requires on-going specialist primary education and training for life, then the obligation of the State to provide for that service will continue into adulthood for the lifetime of the child’ (Barr 2000, p.50)
‘The Government today lodged an appeal designed to clarify points of law, not points of fact, in the recent Jamie Sinnott High Court judgement.’ (Department of Education and Science 2000)
How long will we have to wait for ‘clarification’? It is evident that no definitive opinion or statement is possible while an appeal is still unheard. This page of extracts from the O’Donoghue and Sinnott High Court judgements and from the Report of the Special Education Review Committee attempts to provide a summary of the present ‘state of play’–while we all impatiently await the results of the government’s appeal of the Sinnott case to the Supreme Court. Let’s hope a clearer picture will soon emerge.
The Special Education Review Committee
The Special Education Review Committee was established in August 1991 by the then Minister for Education, Mary O’Rourke, TD. The Committee’s report two years later listed seven principles as guidelines for the future development of the special educational system (pp.19-29). Specific recommendations were made in the report in respect of pupils with severe or profound mental handicap:
- The Departmentt of Education, in cooperation with the Dept of Health, should extend the education service, then being provided on a limited pilot basis only, to all children and young people with severe and profound mental handicap
- The teacher-pupil appointment ratio for such pupils should be 1:6.
- Special needs assistants and other care staff should be appointed for each group of such pupils at a ratio of 1:3, and a full range of other support services should be made available to them, as required;
- All staff involved with these pupils should be given an appropriate basic training and this should be regularly updated in accordance with their needs and with developments in the field;
- An education and training programme should be drawn up for each individual pupil and implemented and reviewed on a regular basis;
- A curriculum development project for such pupils should be undertaken, with reference to the existing pilot projects and linkages between centres caring for these pupils and mainstream schools.
- Parents of pupils with severe or profound mental handicap should be assisted in implementing in their homes the education and training programmes which are being provided for their children in schools and care centres (pp.227-8).
The report also expressed the opinion that ‘where it is not practicable to make appropriate provision for the education of a pupil with multiple handicaps in this country, by reason of the inordinate expense involved in providing the necessary facilities here as compared with the cost of providing for the education of the pupil abroad, the cost of such provision outside of this country should be subsidised, as necessary, by the Exchequer.’ (p.214) Recommendations were also made for the appropriate educational provision for children with autism (p.142).
The Special Education Review Committee pointed out deficiencies in legislation: ‘The right of pupils with disabilities and special needs to an appropriate education should be upheld and provided for under the terms of the proposed Education Act. The Act should define the basic rights and responsibilities of pupils, parents, school authorities, teachers and the state in relation to educational provision for pupils with special needs and/or disabilities’. (pp.213-4)
The O’Donoghue Case
Mr Justice O’Hanlon held that Article 42,s.4 of the Constitution obliges ‘the state to provide for free, basic, elementary education for all children; that such education [should be such as to] enable him to make the best possible use of his inherent and potential capabilities, physical, mental and moral, however limited these capacities might be; …. That education for profoundly handicapped children could … correctly be described as “primary education” within the meaning of that phrase in Article 42, s.4 …; … that children suffering from profound mental handicap could benefit from formal education … and that the applicant [Paul O’Donoghue] was entitled to an award of damages in respect of the respondent’s failure to provide him with free primary education.’ (O’Hanlon 1993, quoted in Barr, pp 33-4).
Mr Justice O’Hanlon stated that primary education for people with severe disabilities requires a new approach in respect of: a) age of commencement (early intervention and assessment); b) duration of primary education (‘The process should, ideally, continue as long as the ability for further development is discernible.’); and 3) continuity of education (‘the teaching process should, as far as practicable, be continuous throughout the entire year’) (O’Hanlon 1993, quoted in Barr 2000, p.42).
The Sinnott Case
In his judgement in the Jamie Sinnott case (4 October 2000), Mr Justice Barr stated that ‘the primary weakness in our administrative structure which has given rise to the plaintiffs’ claims is twofold. First, insufficient liaison between departments of state where a particular problem involves two or more of them …. there is an urgent requirement for an integrated departmental approach to the fulfilment of the constitutional obligations of the State to disabled sections of society … to whom a lifelong obligation may exist.’ Secondly, the administrators in the Department of Finance … appear to be insufficiently informed regarding the constitutional obligations of the State to the weak and deprived in society to enable them to assess realistically the degree of priority which should be attached to each such claim and the structure of priority which the State should devise in meeting its constitutional, as distinct from other non-constitutional obligations. It is, of course, a fact of life that in times of economic difficulty the State may be obliged to rein back severely on expenditure and many projects for which exchequer funding is sought may have to be postponed or curtailed through lack of resources at the particular time. In such circumstances the need for government, and financial administrators, to exercise a balance of constitutional justice where appropriate in prioritising such claims is of particular importance ….Yet we find … that Finance has persistently dragged its feet in recognising and implementing the obligations of the State as made abundantly clear by O’Hanlon J in the O’Donoghue judgment. (p.26-7)
‘The State … may elect to discharge its duties through third party organisations. However, if it takes that course I believe that it has an obligation to the service providers and to the beneficiaries of such services to adopt in discharge of its constitutional obligations a hands-on approach … a positive role in the organisation, provision and supervision of services offered on its behalf, and also to provide funds necessary to meet its constitutional obligations where they are contracted out in that way.’ ‘It is unfair to the COPE Foundation and other such institutions, who are trying with great dedication to do their best for those suffering profound mental disablement, not to give them all necessary support in organisation and finance–including the provision of expertise, equipment and appropriately trained personnel necessary to provide the services which such claimants require and the State has a constitutional duty to provide.’ (pp.27-8)
Mr Justice Barr strongly criticised the Department of Finance for failing to implement Mr Justice O’Hanlon’s call for the provision of a 6:1 pupil/teacher ratio and two childcare assistants per class for children with severe or profound mental handicap: ‘government approval was ultimately granted on 29th October, 1998– more than five years after the judgment in O’Donoghue. In the meantime many hundreds of children with severe or profound mental handicap, including Jamie Sinnott, were deprived of education notwithstanding their established constitutional right to that service from the State.’ (p.29)
‘It is the essence of a democratic society that we live under the rule of law. It is important that the State should be seen to lead the way in support of that fundamental principle–particularly in the area of constitutional obligations. It is unjust that the grievously handicapped, such as Jamie Sinnott, and their families should have to struggle painfully for years to obtain their constitutional rights; that they should have to contend with persistent obstruction and obduracy from officialdom as the evidence in these actions illustrates and that in the end they should be obliged to seek the aid of the courts as guardians of their constitutional rights’ (p.30). ‘It is now a matter for the State to assess the problem areas in its administrative and decision-making structure which have brought about its failure to honour constitutional obligations to the plaintiffs and other similar claimants, and to remedy the situation thus revealed as in its wisdom it deems most appropriate…. such a review is imperative, not only in the interest of those who otherwise would become future claimants seeking constitutional redress against the State, but also in the interest of the State exchequer to avoid or reduce a potentially massive liability for damages and costs in such cases.(p.31)
In contradiction of the state’s argument that an entitlement to education beyond the age of 18 is provided by way of ministerial grace and favour, Mr Justice Barr said: ‘In my opinion … it would be wrong to imply any age limit on the constitutional obligation of the State to provide for the primary education of those who suffer severe or profound mental handicap…. I am satisfied that the constitutional obligation of the State under Article 42, s.4 to provide and continue to provide for primary education and related ancillary services for Jamie Sinnott is open-ended and will continue as long as such education and services are reasonably required by him.’ (pp 49-50)
Mr Justice Barr listed no fewer than nineteen failures in the State’s underprovision of education and treatment for Jamie Sinnott (see pp 62-3). He added: ‘It is proper to lay down a marker that the issue of punitive damages will arise if it transpires in future litigation that this warning is not heeded and decision-makers persist in failing to meet the constitutional obligations of the State to the grievously afflicted and deprived in our society with the urgency which is their right.’ (p.69).
The proposed appeal of the Sinnott Case
On 31 October 2000, Minister for Education and Science Dr Michael Woods announced that the government has lodged an appeal of the Jamie Sinnott High Court judgement. He stated that the government has the duty ‘to have the wider issues arising from the [Sinnott case] judgement clarified in the interest of future policy and development.’ The government had been given legal advice that ‘because of the very broad and unqualified terms of the judgement, it could also apply, not only to a person with a disability, but also to any adult in the whole population, who has had, for whatever reason, an inadequate primary education.’ The Supreme Court would be asked ‘to set down parameters which should apply to this judgement so that the State can plan and resource its educational services accordingly in the best interests of every citizen.’
Meanwhile, scores of court cases are still being taken to the Four Courts by families who are dissatisfied with the educational provision available to their child.