School challenges department order to enrol autistic boy

A national school has brought a High Court challenge to a direction from the Department of Education requiring it to enrol a young autistic boy in an autism specific class next September.

Lucan East Educate Together National School claims that the direction is “irrational” and involves the boy being “leapfrogged” over at least 12 other children, who also unsuccessfully applied for places in the class, which is limited to six pupils.

The direction was issued by the secretary general of the department after a committee of the department granted an appeal, brought by the mother of a boy who failed to get a place in the class, against the school’s decision.

Feichin McDonagh SC, for the school, said three of the six places have been allocated to children with links to the school. In line with the school’s admission policy for the autism-specific class, the remaining three places were allocated to the youngest of the remaining applicants, once those children were aged at least four years, counsel said. The policy for the class was grounded in the fact children with autism benefit from the earliest possible intervention.

The boy whom the department has directed must be enrolled was about 15th in order of priority for places, said Mr McDonagh. It was the school’s case the direction was irrational and in conflict with the admissions policy for that class.

Section 29 of the Education Act, under which appeals can be brought over an enrolment refusal, provides that schools cannot be required enrol pupils if that would conflict with their admission policy, senior counsel said. In making this direction, the department had argued the enrolment policy for this class conflicted with the school’s general admissions policy for mainstream classes which was on an oldest child first basis, he said.

The school disputed that view and contended, even if there was a “disconnect” between the admission policies, that was not a basis upon which the direction to enrol could be made.

All the committee could do was decide if the child qualified under the enrolment policy and it was not open to it to override the policy or make a decision inconsistent with that policy, he said.

What the direction had done was “leapfrog” this child over 12 others entitled to a place under the enrolment policy, he said.

Mr Justice Seamus Noonan said he would grant leave for judicial review of the direction. He said the leave would operate as a stay, with liberty to apply, on operation of the direction pending judicial review.

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