Mother challenges Department of Education circular over special school eligibility requirements

Case raised an important issue that will have consequences for others, say lawyers for mother of child, 5, with autism

The judge gave permission to pursue judicial review proceedings seeking to quash the circular. File picture

A Department of Education circular mandating children with autism to obtain a “letter of eligibility” before applying for special school places is being challenged in the High Court.

Lawyers for the mother of a five-year-old child with autism who says he was left without a school place this year “solely” because of the requirement told Judge Sara Phelan on Monday that their case raised an important issue that will have consequences for others.

It is not in dispute that the child requires a special school placement. 

The case arises from a circular published in May 2025, which stated that children seeking a special school placement must provide to the preferred school a letter from the National Council for Special Education (NCSE) confirming an autism diagnosis.

The result of the circular is that the NCSE now decides whether a school should admit a child to a special school, the mother claims. She submits there is no basis in law for this.

The judge gave permission to Feichín McDonagh, barrister for the boy’s mother, with Brendan Hennessy, instructed by Healy Law, to pursue judicial review proceedings seeking to quash the circular.

McDonagh told the judge it was his belief that the issue raised in the case is the first time it has come before the court.

According to the mother’s court documents, she was unable to comply with an October 1, 2025, deadline to apply for an eligibility letter for her son.

This was in circumstances where to obtain a letter, the mother required a report on an assessment of her child’s needs. This report, compiled by the HSE, was not made available to her until December.

The department later extended the deadline for obtaining an eligibility letter to February. However, by this stage, all places in the autism class at the preferred school were filled.

The mother claims the State has failed to vindicate her child’s constitutional rights to education and fair procedures.

In a sworn statement to the court, the mother said: “It is immeasurably frustrating that, despite our best efforts, we have been unable to secure a place in the autism class... solely because [we] were not provided with a letter of eligibility from the NCSE.” 

She said the “ongoing stress” caused by the situation to her family “is huge and cannot be underestimated”.