Special education schools take court action against department

High Court cases have been taken by the board of management of 11 schools over government policy circular they say amounts to taking management of admissions out of their professional discretion

The schools argue the department acted outside of its powers in issuing circulars directing that an NCSE letter of assessment must now accompany applications as a prerequisite to entry to the schools. Stock picture

A number of special education schools from across the country have mounted a legal challenge against the Department of Education over a government policy circular the schools say amounts to taking management of admissions out of their professional discretion.

At the High Court on Monday, Ms Justice Mary Rose Gearty granted lawyers for the schools permission to take the challenge against the Department, the Attorney General, Ireland, and the National Council for Special Education (NCSE).

The High Court cases have been taken by the board of management of 11 schools with two further schools granted permission by the judge to be joined in the action.

The applicants are management boards whose existence are established under the Education Act 1998, for schools established to cater for pupils with special needs, involving a specified level of learning disability to be confirmed by the schools.

At the High Court, Feichín Mcdonagh, and Brendan Hennessy, instructed by Millett & Matthews, successfully applied to take the legal challenge.

They argue the department acted outside of its powers in issuing circulars directing that an NCSE letter of assessment must now accompany applications as a prerequisite to entry to the schools. 

It is alleged this circular removes the schools’ legal discretion regarding enrolment.

The schools are seeking to quash two circulars from the department dated May 2025 and July 2026, arguing that they are not legally binding.

In submissions to the court, the lawyers submit the department’s circulars amounts to a contradiction of the terms of admissions policy established by the 1998 Act, which confers the discretion of the schools’ assessment professionals regarding all admissions.

Admission terms, the lawyers argue, are to be determined by the boards of management, run in conjunction with school patrons and could not be determined by the department or by the NCSE under the Act.

“There is no provision in legislation for the respondents to take over the admissions decision-making in a special school by insisting that all successful applicants for a place will have first obtained from the NCSE a ‘letter of eligibility’”, it is submitted.

It is further submitted that these new provisions for admissions into a special school “involves a radical and significant change”, which the applicants say is “unlawful” under the Act.

Mr McDonagh said the circular implied that there was “no second opinion” in the matter but that “it is the only option” if the circular went unchallenged by the schools.

Ms Justice Gearty granted permission to bring the challenge.

The schools, through their boards of management, currently on record as taking the cases are listed as: 

• Scoil Eoin Special School, Armagh Road, Crumlin, Dublin 12; 
• St Mark’s Special School, Station Rd, Piercetown, Newbridge, Co Kildare; 
• St Laserian’s Special School, Old Dublin Rd, Strawhall, Carlow; 
• Red Door Special School, Monkstown Grove, Monkstown, Dublin; 
• St Joseph’s Special School, Parnell St, Waterford; 
• St Bernadette’s Special School, College Farm Rd, Sallaghagrane, Letterkenny, Co Donegal; 
• St Ita's and St Joseph's School, Balloonagh, Tralee, Co Kerry; 
• St Michael's House Special School Skerries, Co Dublin; 
• St Anne’s Special School, Lifford, Ennis, Co Clare; 
• Our Lady of Fatima Special School, Carrigeen St, Townparks, Co Wexford; 
• St John’s Special School, Youghal Road, Dungarvan, Co Waterford.