C.D. v HSE; L.E. & Anor v HSE & Ors (Approved)

The absence of an employment relationship between the NCSE and the principal or a teacher in the child's school does not preclude their nomination. Section 8(3) uses the word " nominate" rather than appoint or direct. Every word used in a statute must have a meaning. To nominate someone is to propose them for appointment rather than to actually appoint them. It is not necessary for the NCSE to have the power to compel a person whom they choose to nominate. A teacher might legitimately decline to provide the assistance that the assessment officer requires or might indicate an ability to provide some but not all it. Counsel for the NCSE acknowledged that if school personnel refused to complete an assessment of education needs report, they could not be compelled to do so. That did not arise here as the teachers in both schools completed the assessment of education needs reports without raising any concerns at that time (albeit the deputy principal in D's school subsequently expressed his concerns to this Court), but the NCSE recognised the possibility of having to deal with such a situation in that Brendan Doody, the NCSE's deponent, states, at para. 33 of his affidavit:

The assessment officer, in preparing the assessment of needs report that had been requested, was of the opinion that there may be a need for an a education service to be provided and so they made a request of the NCSE in accordance with s. 8(3) and the NCSE nominated the principal of the child's school pursuant to s. 8(3). Mr. Doody, identifies the following as the steps for processing referrals from the HSE in respect of an assessment of education need at para. 32 of his affidavit in CD:

Mr. Doody exhibited some of the documents that are utilised where an assessment officer invokes s. 8(3). He gave an account of the Continuum of Support framework developed by the National Education Psychology service, which is used to identify pupils with special or additional education needs in schools and which supports teachers to gather relevant data to plan intervention and review students' progress. That data is recorded in an individual SSF which he described, at para. 15 of his affidavit, as "a tool for assessment in identifying a student's education needs within the context of the Continuum of Support problem-solving framework used nationally in Irish schools" . He also referred to the Special Education Teacher allocation model and to 2022 Guidelines for teachers on the provision of education for children with autism, which note the importance of school-based assessments in responding to the needs of students. He concluded (at para. 20 of his affidavit) that:

Mr. Doody also exhibited the Special Education Needs Continuum of Support resource pack for teachers which seeks to set out how teachers should identify and cater for special education needs of individual pupils. Those guidelines refer to the need to consider the feasibility of intervention on the basis of resources available to the school (at p. 4) and concludes that "schools need to develop realistic interventions, depending on the availability of resources and services (both within the school and within the community)" . The guidelines for supporting pupils with special education needs in mainstream schools, that Mr. Doody exhibits, also refers to school resources and has a section (at p. 18) on "How can schools allocate special education teaching resources to effectively meet needs?" . It is not surprising to see those references to allocation of resources as the State expects the resources it makes available to a school will be allocated in a transparent and policy-based manner.

It is clear from Mr. Doody's detailed account that these arrangements have been put in place for schools to identify and cater for the special education needs of individual pupils. They were not specifically designed for the 2005 Act's assessment of needs process even though they are now used for it. The applicants suggested that this was an impermissible delegation of authority, but I do not see any legal impediment with using those arrangements as long as the assessment of needs process is conducted in accordance with the requirements of the Act. Section 21(a)(v) of the Act does allow the Minister to make regulations for the purpose of, inter alia , matters relating to the NCSE's nomination pursuant to s. 8(3), but the making of such regulations is not mandatory and does not prevent a nomination pursuant to s. 8(3) from taking effect as long as it is done in accordance with the statutory provisions. Section 8(3) clearly gives the NCSE a statutory role in the assessment of needs process and it is a matter for the NCSE how they discharge that role, as long as they do so within the parameters of the provisions of the Act. I do not consider the manner in which the NCSE nominates a school principal pursuant to s. 8(3) to fall so far outside the applicable statutory authority as to be ultra vires as occurred in O'Neill v. Minister for Agriculture [1998] 1 IR 539 where the purported exercise of a power lacked any legislative basis. Here the Oireachtas has provided for the s. 8(3) process and it is therefore "the application of the power that the Oireachtas had implemented" (as per my judgment in McGrath and Mulreany v. DPP & ors [2023] IEHC 347 . ; at para. 32). This situation comes within the type of arrangement approved of by Barr J. in G.F. & anor v. Minister for Education and Skills [2022] IEHC 379 where, similar to here, the Minister was permitted, but not required, to make regulations when setting out a certain policy. Barr J. upheld the Minister's decision to implement the policy by circular rather than by regulation. The situation to neither distinguishable nor rendered ultra vires simply because the framework that was applied by the NCSE here was formulated by the Minister for Education rather than by the Minister with responsibility for the Disability Act, particularly given the role the Oireachtas gave to the NCSE in s. 8(3) and the fact that the NCSE is a body that itself comes under the responsibilities of the Minister for Education.

The first of the documents exhibited by Mr. Doody that seems to have been drawn up specifically to cater for the s. 8 assessment of needs process is an Information Note on the Assessment of Needs Process which was issued to schools on 20 October 2022, following on the decision of the Court of Appeal in C.M which confirmed that s. 8(3) applied to children as well as to adults. This Information Note seems to postdate C's assessment of needs report, but it is useful in considering both cases as it confirms the basis on which the NCSE operated in providing the assistance to the HSE that was required of it by s. 8(3). An updated Information Note issued in February 2023 reiterated that the information required of the school is limited to what is already in the student's support plans, and expressly states that schools "are not required or expected to undertake additional assessments for the purpose of completing an AON form" and that the form is typically 'completed quickly' where the SSP is to hand.

There are a number of factual inaccuracies in the 2022 Information Note which are relevant as they seem to show the NCSE's misunderstandings of the legal requirements of s. 8(3) which were applied in completing the assessment of education needs report and the assessment of needs report rendering both inherently flawed. Those inaccuracies are as follows:-

The applicant also criticised the NCSE process for not making any reference to HIQA standards as required by s. 10 and Regulation 16. There is no mention in any of the documents furnished to the school of those standards. There is nothing to suggest a principal or a class teacher would have been aware of such standards as they do not fit into the Continuum of Support framework designed by the Department of Education.

Nowhere in the information furnished to the school by the NCSE is the school informed of the resources blind requirement of s. 8(5) that " shall" be part of the s. 8 statutory assessment of the student's education needs. If a principal and/or class teacher is to advise on their student's education needs and the services that are required to meet those needs against the benchmark of a resources blind, gold standard of that student's needs (as required by s. 8(5)), they cannot be limited to considering the child's education needs that have been identified by the school within a framework that is expressly constrained by the resources available to the school. The framework on which the NCSE relies in standing over their s. 8(3) process ( i.e. the Continuum of Support and other documents referred to above that have been exhibited by Mr. Doody) is part of a policy that requires a school to identify needs and provide services within the resources available to it . Nowhere in the Continuum of Support framework is there any mention of the gold standard of the s. 8 assessment of needs process or the need to assist with an assessment that s. 8(5) says " shall be carried out without regard to the cost of, or the capacity to provide, any service identified in the assessment as being appropriate to meet the needs of the applicant " (my emphasis). That is because the Continuum of Support framework was not designed for the s. 8 statutory, gold standard assessment of needs process but, rather, is part of the Minister for Education's wider policy of providing for the education needs of children with special or additional education needs which is expressly required to fit within the constraints of resources that are made available to a school.

The NCSE have sought to graft a framework designed for the provision of special education in schools within that school's available resources, onto the requirements of a very different, radical statutory provision that precludes the usual prudent requirement that services should be allocated within the finite resources available to the service provider. In trying to fit the round peg of the special education / Continuum of Support framework into the square hole of the s. 8(3) statutory requirements, the NCSE have failed to comply with their statutory obligations and have denied the applicants' access to the information about the applicants' education needs to which they are entitled.

The impugned process applied by the NCSE in purporting to comply with s. 8(3) makes no provision for the identification of education needs that might not be addressed by services available in the school or of education needs that may not yet have been identified by the school in its assessment of how that student's education needs can or should be addressed within the resources the school has available to it. Section 7 defines " education service " as a service provided by a recognised school or centre for education. It is possible that a particular education service may not be available in the school that has been asked to complete the child's assessment of education needs by reference solely to the contents of their own files, even though that service might be appropriate for that child's education needs. Section 8(3) makes it clear that the person with appropriate expertise is nominated " to assist in the carrying out of the assessment under this section " (my emphasis). A s. 8 assessment of a child's education needs is exactly that, an assessment of their education needs, not an assessment of the education services available in that child's school. The child's education needs may include a need for an education service that is not provided by their school and not provided by another recognised school or centre of education. The impugned s. 8(3) process applied by the NCSE here is limited to information the school principal or teacher has available to them from the student's files and therefore deprives the child of any assistance that the principal or teacher might be able to provide from a consideration of the child's needs for services that are not available either in their own school or in another recognised school or centre for education, but which that teacher may consider to be part of that child's education needs. The point is well illustrated by the view expressed by D's deputy principal in his affidavit that D should have had a cognitive test and that his educational needs must be supplemented by the input of a multidisciplinary team. Those views were not expressed by him in D's assessment of education needs, but only because he was told to limit his comments to what was already in D's SSP, which the deputy principal believed was not reflective of D's needs and which he believed was nothing more than a box ticking exercise. Had he been given the opportunity to set out his view of D's needs within the gold standard assessment required by s. 8(5), it would then have been open to the assessment officer to have considered them in carrying out the assessment and setting out their findings and determinations in the report, as is required by s. 8(7).

An affidavit sworn by the principal officer of the NCSE refers to the current advice to schools that external reports can also be relied on as well as the SSF, but that does not neutralise the absence of any information, advice or support given to the school so that the teacher filling out the assessment of needs report will understand that they are being asked to assist with an assessment of education needs that is not limited by the availability of resources or the cost of or capacity to provide any service that the assessment of needs might identify as appropriate to meet this student's needs, as is required by s. 8(5), or that they are free to give their views, if any, of the child's education needs that they consider could be met by the provision of education services that are not available in their school or even in another recognised school or centre of education.

The process applied in this case to purportedly comply with s. 8(3) whereby the child's school was instructed to complete an assessment of education needs within a very short timeframe and by reference only to the child's SSP/SSF (and insofar as relevant, any external reports available to the school) was not in compliance with the requirements of s. 8(3) " to assist in the carrying out of the assessment under this section" , i.e. a resource and capacity blind assessment in accordance with s. 8(5) for the purpose of an assessment of the child's education needs such as will enable the assessment officer to set out the services that they consider to be appropriate to meet the child's education needs. The use of the Continuum of Support framework, the guidelines for provision of education to children with autism and the other material referred to and relied on by the NCSE for a school to complete an assessment of education needs by reference to material in the school's possession is not and could not suffice for the unique, resources blind, gold standard assessment of needs processes of s. 8. A teacher will not be able to fulsomely or properly assist with that assessment if they are never told of the unique, resources blind nature of the assessment process but, instead, are expressly advised to provide information from the student's existing files that has been assembled by reference to the resources available to that school. It may be that a school, particularly one endowed with good resources for their students with additional education needs, would end up with the same information in the child's assessment of education needs, but that does not alter the shortcomings of the process that was applied to the applicants' assessment of education needs that did not inform the school of the fact that it could and should identify needs and services that would provide for the child's education needs without being constrained by the cost of or capacity to provide any such service or the availability of a service that might meet the child's education needs in their own school or another recognised school or centre of education.

The assessment of education needs in CD repeatedly refers to C's "goals" which was transcribed by the assessment officer in completing his assessment of needs. C's education goals are not the same as his needs, albeit there may be some or even complete overlap. Advising the assessment officer of the goals the school has for C does not, in itself, tell them what C's education needs are or assist in identifying appropriate services. Identifying education goals may be part of the process but it not the sum of it.

It is clear from both assessment of needs reports that the assessment officers transcribed what the schools had furnished in their assessment of education needs reports, to which they added some references to external reports and in relation to C, referred to the possibility of a trial with alternative communication devices. The assessment officer should treat the assistance of the person nominated pursuant to s. 8(3) with respect but it is not an expert opinion which the assessment officer can or should simply transcribe. It is assistance for the assessment officer to carry out the assessment, the results of which are to be set out in a report that must include the assessment officer's findings and determinations of the matters set out at s. 8(7). That requires more of the assessment officer than simply transcribing the school's assessment of education needs report which in turn has been transcribed from the school's own files and completed in a prescribed, short period of time without the school having been advised of the full nature of the statutory process with which they are assisting.

Once the assessment officer decides to invoke s. 8(3), the NCSE must nominate a person with appropriate expertise (who can be a qualified teacher) to assist in the carrying out of the assessment of the child's education needs without regard to " the cost of, or the capacity to provide, any service identified in the assessment as being appropriate to meet the needs of the applicant concerned ". That assessment of the child's education needs can then be used by the assessment officer in carrying out an assessment of needs and in setting out their findings and determinations of the matters set out at s. 8(7). This has not yet happened in relation to these applicants.

I find for the applicants. I will hear counsel further on the appropriate orders that should be made.