The National Council for Special Education (NCSE) has been accused of attempting to “bounce” its legal responsibilities and obligations to children with disabilities onto school principals.
It comes after a circular was issued to schools this week, telling them they now will play a role in the assessment of need (AON) process.
AONs are intended to be the first step towards identifying the needs of children with a disability. Under the Disability Act, the assessment must commence within three months of its initial referral and be completed within three months of commencement. However, long waiting lists mean children can wait years.
An ‘information note’ to schools this week from the NCSE said it “now has the responsibility to nominate an appropriate person to carry out an assessment of education needs on behalf of the HSE under the AON process” following a legal judgment in 2021. The note includes a questionnaire-type form and instructions for principals on how to complete the process.
Under the Disability Act, the HSE can request that the NCSE nominate a person with appropriate expertise to carry out an educational assessment for a child where it determines there is a need.
"What the NCSE seems to be doing [with this information note] is passing this over to school principals," said children’s rights solicitor Gareth Noble of KOD Lyons which has brought legal challenges to the system of assessing children.
The HSE assessment officer is the person charged under the Disability Act with arranging for these assessments.
"They are told they need to go to the NCSE for that, but the NCSE seems to be stepping off the pitch of play and sending it in to school principals.
The issue stems from crucial parts of the EPSEN Act not being commenced, more than 18 years on. “If the EPSEN Act had been commenced properly, principals could have used that to arrange for an educational assessment, and they would be making the referral to the NCSE.”
Schools should have the opportunity to have input into making sure children have the right supports and assessments, Mr Noble added. “But they shouldn’t be left with the legal responsibility to ensure that’s done.
“I think the NCSE are leaving themselves very vulnerable to legal challenge in respect of that direction because they need to be the person to nominate a person with appropriate expertise.
"It’s unclear from the circular as to who they propose to nominate, other than giving a big questionnaire type thing to school principals.”
He said lack of resources was not a legal defence.
“My concern, and I’m sure the concern of school principals, would be that they’re giving principals effectively the responsibility to ensure that these routines are being done without the resources or the expertise to do so.
“It’s very important that the NCSE clarify all this urgently, and confirm that it is not school principals who are being asked to ensure that these assessments are being done, and that it is the NCSE who are doing it.”
A spokesperson for the Department of Education said: "