1. 1 I.P.P.N. National Conference February 2005

2. 2 Legal Presentation David Ruddy BL.

3. 3 Access to Information held by Schools

4. 4 Data Protection Act 1988 Data Protection Amendment Act 2003

5. 5 Applications for Registration Form DPA 1

6. 6 Vast Majority of Schools Will need to Register WHY?

7. 7 We Hold Sensitive Personal Data on Computer

8. 8 What is sensitive personal data? Racial Origin Membership of Travelling Community Religious Beliefs Special Needs Physical / Mental Health

9. 9 Requirement to register not exclusive to files: Letters on computer Re: special needs assistant, resource hours, non nationals, traveller children, grants, etc

10. 10 Data Controller Generally the Principal

11. 11 If personal Sensitive Data held on Computer Registration a must!

12. 12 Physical Safeguards Example: “Computers are kept in locked office; access restricted to authorized personnel only. Premises alarmed and secure when not occupied”.

13. 13 Technical Safeguards: Example: “Systems are password Protected and Anti-Virus Software is in use”.

14. 14 2003 Data Protection Amendment Act refers to manual files for the 1 st time

15. 15 The Manual file must be structured or searchable by reference to individuals ie.pupils/parents/staff

16. 16 Teacher CV’s V Individual Teacher File Discipline File V Individual Pupil File Special Needs Pupils V Special Needs Pupil File

17. 17 Rights of Data Subjects: Establish existence of personal data relating to them. Have access and be given copies of data with limited exceptions. To have inaccurate data rectified or erased.

18. 18 ONLY THE INDIVIDUAL PUPILS CAN REQUEST ACCESS TO A FILE. THIS REQUEST MUST BE IN WRITING. PARENTS CANNOT MAKE A REQUEST.

19. 19 FREEDOM OF INFORMATION ACT 1997 Aim:To provide citizens with information which was of interest to them. i.e Department of Education & Science, Personal File, Revenue File.

20. 20 School not Public Bodies under the Act ie.have immunity at the moment. Universities are covered.

21. 21 If information passes from school to DES or Health Board Immunity can be lost.

22. 22 BARNEY SHEEDY (Principal, Scoil Choilm, Crumlin, Dublin) V INFORMATION COMMISSIONER (HIGH COURT) 2004

23. 23 THE IRISH TIMES REQUEST FOR PRIMARY SCHOOL INSPECTION REPORTS DEPARTMENT OF EDUCATION AND SCIENCE REFUSE

24. 24 IRISH TIMES APPEALS TO INFORMATION COMMISSIONER ORDERS RELEASE OF REPORTS PRIMARY SCHOOL PRINCIPAL APPEALS TO HIGH COURT HIGH COURT UPHOLDS DECISION OF INFORMATION COMMISSIONER

25. 25 EDUCATION WELFARE ACT 2000

26. 26 Schools are obliged to record attendances and report certain absences. Education Welfare Officers are entitled to have access to these records.

27. 27 EDUCATION ACT 1998 SECTION 9 Limits the type of records to be disclosed to parents/guardians as those “relating to the progress of the student in his or her education” No circular /directive from DES yet.

28. 28 How long should records be kept BY A SCHOOL ?

29. 29 Statute of Limitations Age of Majority 18 yrs + 3 yrs = 21yrs

30. 30 RETAIN & SAFELY STORE Roll Books Accident Report Books Test Results Psychological Assessments Annual School Reports

31. 31 The 8 Rules of Data Protection Obtain and process information fairly Keep it only for one or more specified, explicit and lawful purposes Keep it safe and secure Keep it accurate, complete and up to date Ensure that it is adequate, relevant and not excessive Retain it for no longer than is necessary for the purpose or purposes Give a copy of his/her personal data to that individual, on request.

32. 32 BULLYING IN SCHOOL LIABILITYDISCIPLINARY In respect of injuryProcedure instituted on Caused to a pupilfoot of incidents of By another pupil/ pupilsbullying

33. 33 PUPIL INJURED (Physically or Psychologically) by another Pupil/Pupils Either as a one off action or a pattern of behaviour as bullying Appropriate Defendant and actual wrong doer ie pupil/pupils. Children not a mark for damages Parents not liable for the acts of their minor children Aggrieved/injured children and their parents will look to a party who does have money ie insurance, Board of Management of the school

34. 34 Q.Why should a school be liable in negligence for the intentional acts of others? A. Liability can be imposed because certain relationships impose obligation on one party to protect others from injury resulting from the intentional conduct of the other party. i.e.psychiatrist Galway case mother and 2 children drown husband awarded €120,000 as part of negligence action.

35. 35 TORT OLD NORMAN FRENCH “A WRONG” – CIVIL REMEDY AN ACTION for “Unliquidated Damages”

36. 36 Proof necessary to show that a tort has been committed. Must have been a Voluntary Act or Omission Offending Party MUST have been at Fault or Negligent in some way.

37. 37 NEGLIGENCE THREE PROOFS Duty of Care (In Loco parentis) Failure to reach Standard required by Law (Objective Standard) Damage / Injury (flows from a breach of the Duty Of Care)

38. 38 VICARIOUS LIABILITY RYAN V MADDEN 1944 – Irish Reports e.g. Junior Primary School Infant Class in Upper Storey of Building.

39. 39 13 YEAR OLD GIRL PUSHED BY FELLOW STUDENT RESULTING IN A SERIOUS HIP INJURY Hamilton V Independent School District No 114 (Minnesota Court of Appeal USA 1984)

40. 40 15 YEAR OLD GIRL LIFTED BY ANOTHER PUPIL (A BOY) AND DROPPED ON A CONCRETE SLAB INJURING HER TAILBONE Haines V Warren (Dept of Education) Australia Court Of Appeal 1986

41. 41 10 YEAR OLD’S ARM BROKEN IN QUEUE FOR LUNCH. ORDER FOR CERTIORARI TO QUASH HEAD’S DECISION NOT TO TAKE DISCIPLINARY ACTION AGAINST THE BULLY. R V Head Teacher of Fairfield Primary School Q.B.D. 1997 (England)

42. 42 “The standard of care required of the school authorities is to take all reasonable steps and reasonable care not to expose any of the children to a risk of damage or injury.”

43. 43 “The law does not require them to guarantee that an incident like this could not occur.”

44. 44 Anti Bullying Policy Department of Education and Science Guidelines “Definition of Bullying is repeated aggression verbal, psychological or physical conducted by an individual or a group against others. Isolated incidents of aggressive behaviour, which should not be condoned, can scarcely be described as bullying. However when the behaviour is systematic and ongoing it is bullying”.

45. 45 TYPES OF BULLYING Physical Aggression Damage to Property Abusive Phone/ Texts calls Extortion Intimidation Slagging Name Calling Isolation

46. 46 Mulvey V Mc Donagh 2004 (High Court)

47. 47 Beamish v King’s Hospital Boarding School Palmerstown 1998 (Circuit Court)

48. 48 Dean Barry V Board of Management of St. Martin De Porres School Tallaght (Circuit Court 2004)

49. 49 Wayne Maher V Board of Management of Presentation Junior School Mullingar (High Court 2004)

50. 50 SPECIAL NEEDS EDUCATION NAGLE CASE NOV 2001 SINNOTT CASE 2000 EDUCATION FOR PERSONS WITH SPECIAL NEEDS ACT 2004 EQUAL STATUS ACT 2000 EDUCATION ACT 1998 O’ DONOGHUE CASE 1993 ARTICLE 42

51. 51 1937 Constitution STATE SHOULD PROVIDE FOR FREE PRIMARY EDUCATION PARENTS PRIMARY /NATURAL EDUCATORS

52. 52 O’ DONOGHUE V MINISTER FOR HEALTH & OTHERS (High Court) 1993

53. 53 EDUCATION ACT 1998

54. 54 SECTION 6 (OBJECTS OF THE ACT) BOM’S, SCHOOLS, PRINCIPALS, PATRONS, TEACHERS GIVE PRACTICAL EFFECT TO THE CONSTITUTIONAL RIGHTS OF CHILDREN, INCLUDING CHILDREN WITH DISABILITIES OR OTHER SPECIAL EDUCATIONAL NEEDS.

55. 55 SECTION 9 (FUNCTIONS OF A SCHOOL) “ENSURE EDUCATIONAL NEEDS OF STUDENTS INCLUDING THOSE WITH DISABILITY OR SPECIAL NEEDS ARE IDENTIFIED OR PROVIDED FOR”

56. 56 SPECIAL EDUCATIONAL NEEDS “THE EDUCATIONAL NEEDS OF STUDENTS WHO HAVE DISABILITY AND THE EDUCATIONAL NEEDS OF EXCEPTIONALLY ABLE STUDENTS”.

57. 57 SUPPORT SERVICES INCLUDE: ASSESSMENT OF STUDENTS PSYCHOLOGICAL SERVICES GUIDANCE AND COUNSELLING SERVICES EQUIPMENT AND MEANS OF ACCESS TO SCHOOLS/TRANSPORT SIGN LANGUAGE INCLUDING INTERPRETING SERVICES SPEECH THERAPY SERVICES

58. 58 SCHOOL PLAN THIS DOCUMENT SHOULD INCLUDE A POLICY STATEMENT ON PUPILS WITH SPECIAL NEEDS. ARE INDIVIDUAL EDUCATION PROGRAMMES (I.E.P’S) MAINTAINED? SECTION 21

59. 59 EQUAL STATUS ACT 2000

60. 60 LEGAL EFFECT 25 TH OCTOBER 2000

61. 61 AIM PROMOTES EQUALITY AND PROHIBITS DISCRIMINATION IN RELATION TO THE PROVISION OF SERVICES

62. 62 SECTION 7 “EDUCATIONAL ESTABLISHMENT” MEANS A PRIMARY OR POST PRIMARY SCHOOL.

63. 63 (SECTION 3) THE DISCRIMINATORY GROUNDS GENDER MARITAL STATUS FAMILY STATUS SEXUAL ORIENTATION RELIGION AGE DISABILITY RACE MEMBERS OF THE TRAVELLER COMMUNITY.

64. 64 AN EDUCATIONAL ESTABLISHMENT DOES NOT DISCRIMINATE BY REASON THAT

65. 65 “THE DISABILITY GROUND” This is broadly defined including people with physical, intellectual, learning, cognitive or emotional disabilities and a range of Medical Conditions. DISABILITY – PRESUMPTION OF MAINSTREAMING Schools can treat students with disabilities differently (apart from the normal cost exemption) only if the disability is making the provision of educational services impossible to other students or having a seriously detrimental effect on that provision. If the state provides grants or aids for assisting in providing special treatment or facilities, there may be an onus on the service provider to avail of these grants.

66. 66 EDUCATION WELFARE ACT 2000 FULLY COMMENCED BY JULY 2002

67. 67 AIMS ENSURE EACH CHILD RECEIVES AT LEAST A MINIMUM EDUCATION INCREASE SCHOOL GOING AGE FROM 15YRS TO 16 YRS OR COMPLETION OF 3 YRS POST PRIMARY EDUCATION. SCHOOLS OBLIGED TO LOOK AT THEIR CURRICULUM AND TO MAKE CHANGES IN ORDER TO ACCOMODATE VARYING NEEDS OF STUDENTS.

68. 68 EDUCATION FOR PERSONS WITH SPECIAL EDUCATIONAL NEEDS ACT 2004 ENACTED JULY 2004

69. 69 DEFINITION OF SPECIAL EDUCATIONAL NEEDS In relation to a child, means a restriction in the capacity of the child to participate in and benefit from education on account of an enduring physical, sensory, mental health or learning disability or any other condition which results in a person learning differently from a child without that condition.

70. 70 Old Definition in 1998 Education Act “Condition/illness or disease affecting the thought process, perception of reality, emotions or judgement, resulting in distrubed behaviour”

71. 71 Definition of Disability in Education Act 1998 replaced by the new definition.

72. 72 Now definition of Special Educational Needs = Definition of Disability (not so in the 1998 Education Act)

73. 73 SECTION 26 SPECIAL EDUCATIONAL NEEDS ORGANISER (SENO) This section deals with the appointment of the Special Educational Needs organizers. There is no clear definition of this post in the Act.

74. 74 SECTION 26 SPECIAL EDUCATION NEEDS ORGANISERS (SENOS) Act as a point of contact for the parents of each child with a disability Organise the assessment of needs and the preparation and review of individual child related education plans. Coordinate the provision of the range of services available to children with disabilities

75. 75 SECTION 26 SPECIAL EDUCATION NEEDS ORGANISERS (SENOS) Liaise with parents, children, schools and organizations such as Health Boards, the National Educational Psychological service and the Department of Education and Science. Report to the council as required.

76. 76 SECTION 26 SPECIAL EDUCATION NEEDS ORGANISERS (SENOS) A third level qualification, preferably at degree level, or a professional qualification relevant to the provision of services to children with disabilities. At least two years experience in the education of children or the delivery of other services to children with disabilities. Appointments will be made on a contract basis for a period of 5 years. Salary: €26,345 – €51,704

77. 77 THE PRINCIPAL IS RESPONSIBLE FOR THE FOLLOWING UNDER SECTION 3 If the principal is of the opinion that the student is not benefiting from the regular education programme of the school all practicable measures must be taken to meet the educational needs of the student.

78. 78 THE PRINCIPAL IS RESPONSIBLE FOR THE FOLLOWING UNDER SECTION 3 After taking such practicable measures and if the student in the opinion of the principal is still not benefiting from the educational programme in the school, and this is a result of an educational disability, the principal arranges for an assessment of the pupil to be carried out with parental consent.

79. 79 THE PRINCIPAL IS RESPONSIBLE FOR THE FOLLOWING UNDER SECTION 3 The assessment must be carried out within a three-month time frame.

80. 80 THE PRINCIPAL IS RESPONSIBLE FOR THE FOLLOWING UNDER SECTION 3 One month after the assessment report is conveyed to the principal an education plan must be prepared.

81. 81 THE PRINCIPAL IS RESPONSIBLE FOR THE FOLLOWING UNDER SECTION 3 The Principal must consult with the relevant parents, special needs organizer and any other relevant professionals.

82. 82 THE PRINCIPAL IS RESPONSIBLE FOR THE FOLLOWING UNDER SECTION 3 The Principal must cause the education plan to be prepared in accordance with any guidelines issued by the National Council for Special Education.

83. 83 THE PRINCIPAL IS RESPONSIBLE FOR THE FOLLOWING UNDER SECTION 3 The Principal provides parents of the child and special needs organizer with a copy of the plan.

84. 84 THE PRINCIPAL IS RESPONSIBLE FOR THE FOLLOWING UNDER SECTION 3 If the educational disability is such that the principal/school do not feel competent to prepare the plan, a request can be made to the national council for Special Education to prepare a plan in respect of the child.

85. 85 THE PRINCIPAL IS RESPONSIBLE FOR THE FOLLOWING UNDER SECTION 3 If the council take responsibility for the plan the special needs organizer may convene a team of professionals to include the school principal in order to prepare the plan.

86. 86 THE PRINCIPAL IS RESPONSIBLE FOR THE FOLLOWING UNDER SECTION 3 If the request for help in preparation of the plan is rejected the principal is entitled to appeal the refusal to an appeals board. The Appeals board may allow or dismiss the Principal’s appeal.

87. 87 SECTION 5 ASSESSMENT This section deals with the mode of assessment. The principal of the school will be an integral part of the assessment procedure.

88. 88 SECTION 9 CONTENT OF AN EDUCATION PLAN This section outlines the content of an education plan which must not exceed a period over one year The plan must provide to enable a student to effectively make the transition from primary to post primary school.

89. 89 SECTION 9 CONTENT OF AN EDUCATION PLAN The principal must implement an education plan. In the event of the pupil transferring from one school to another the principal of the first school must inform the receiving school principal of the contents of the plan.

90. 90 SECTION 9 CONTENT OF AN EDUCATION PLAN Ensure that the receiving school is capable of implementing that plan. Assist the principal of the second mentioned school in amending the plan, where such an amendment is considered necessary by that principal having regard to the special needs of the child and the operation of the second mentioned school. (Deleted as a result of ammendments tabled)

91. 91 SECTION 10 DESIGNATION OF A SCHOOL The special needs Educational council have the power to designate a school which a child with special needs is to attend and the school will be obliged to enrol the child. This section is specifically aimed at overcoming a perceived practice engaged in by some schools of seeking to avoid admission of children with educational disabilities. The school may appeal the council’s designation to the appeals board.

92. 92 SECTION 10 DESIGNATION OF A SCHOOL However the burden of proving that a school does not have adequate resources to enable it to meet the needs of the child concerned shall be on the board of management of the school.

93. 93 SECTION 11 REVIEW OF THE EDUCATION PLAN. The principal must review the plan at least once a year to establish is the pupil achieving the goals specified in the education plan. The principal shall make a report to the parents of the child concerned and the relevant special needs organizer of the outcome of such a review.

94. 94 SECTION 11 REVIEW OF THE EDUCATION PLAN. If the special needs organizer is unhappy with the report and is of the view that the pupil is significantly failing to achieve the specific goals he/she can reconvene the relevant team (which includes the principal) for the purpose of amending the plan.

95. 95 SECTION 11 REVIEW OF THE EDUCATION PLAN The parents of the pupil who is the subject of the plan can request the principal to review the plan within 6 months of its preparation. If the principal agrees to the request he/she shall carry out the review.

96. 96 SECTION 11 REVIEW OF THE EDUCATION PLAN If the principal refuses the request the refusal and the reasons thereof must be communicated in writing to the parents. The parents on receiving a refusal have one month to appeal to the council against a refusal by the principal to accede a request.

97. 97 SECTION 11 REVIEW OF THE EDUCATION PLAN. The council must allow or dismiss the parents appeal within 1 month. The principal must comply with the decision of the council.

98. 98 SECTION 12 APPEALS IN RELATION TO EDUCATION PLANS A parent may appeal any statement or description of their child’s special educational needs as set out in an education plan (a) On the grounds that the statement is incorrect or inadequate to meet the child’s needs. (b) Failure by a school to discharge its duties.

99. 99 SECTION 12 APPEALS IN RELATION TO EDUCATION PLANS The appeal shall be heard within two months. It can be dismissed or allowed. If the appeal is allowed the council can direct the principal/council to amend the plan in such a manner, as the appeals board considers appropriate or give such other direction to the principal. The principal shall comply with such a direction.

100. 100 SECTION 14 THE BOARD OF MANAGEMENT The Board of Management shall ensure that there is an integrated educational setting within the school. Ensure that parents of a student with special educational needs are informed of their child’s needs being met.

101. 101 SECTION 14 THE BOARD OF MANAGEMENT Ensure parents are consulted with regard to, and invited to participate in, the making of all decisions of a significant nature concerning their child’s education. Cooperate to the greatest extent practicable with the council and its employee’s.

102. 102 SECTION 18 Principal can delegate responsibilty to other members of staff

103. 103 POSITIVE ASPECTS OF THE ACT

104. 104 Makes detailed provision for children with Special Educational Needs

105. 105 These children get statutory protection ie their rights are enforceable in law.

106. 106 The support & expertise of the National Council for Special Education & Special Needs Organisers.

107. 107 Section 50 Provision of qualified privilege welcome.

108. 108 What is qualified privilege? “Every plan report and assessment prepared or made under this act shall, for the purposes of the law of defamation, enjoy qualified privilege”

109. 109 Parents can be compelled by order of the Circuit Court to have their children assessed.

110. 110 Oireachtas Committee on Education & Science TD’s + Senators

111. 111 Amendments to the Bill Expand the role of Special Needs Organiser and Reduce the role of School Principals.

112. 112 National Council for Special Education OPW Building Newtown, Trim, Co. Meath. Phone: 046 – 9486702 Fax: 046 - 9436660