Education

Home Tuition Grant for a child with Autism

Complaint:
The parents of a boy, aged 4, submitted a complaint to the OCO, raising concerns that their child, who has been diagnosed with autistic spectrum disorder and a moderate intellectual disorder, had been refused at short notice a Home Tuition Grant (HTG) for the coming school year, as the Department of Education & Science had stated that a placement was available for him in a mainstream primary school.

The complaint contended that the placement in the school was unsuitable for the child’s needs as he was a non-verbal child, not yet toilet-trained, suffered from a feeding disorder and had temper and screaming tantrums when agitated and frustrated. Documentation was attached from the principal of the school in question, the child’s doctor, and the HSE’s Early Years Support Team, all supporting the position that the child was not ready for primary school. In addition, the complainants expressed the opinion that placement in the school’s ASD unit would be inappropriate as all the children attending the class were 7 or 8 years old, were all verbal and toilet-trained.

Furthermore, the complainants stated that the primary school was over 25 miles away from the family home. Due to the distance and time that would be involved in transporting the child to school, and in light of his specific needs and circumstances, the complainants expressed the opinion that it was not a feasible arrangement for the child to make the trip to and from school on a bus, or in a car with his parents, at this stage in his development.

Their Home Tuition Grant had previously been used to pay for a tutor in a private autism specific pre-school facility. As such, the parents contended that, given the child’s apparent unreadiness for primary school, and the fact that without the grant, they could no longer afford the specialised pre-school, the removal of the grant would have a serious adverse effect on the child’s development. They also argued that the timing of the decision to refuse the grant, communicated to them on the 1st September 2009, meant that there would be no transition period for the child between pre-school and mainstream primary school. The redress sought by the complainants in this case was the approval of a Home Tuition grant on behalf of their son for at least another year.

Investigation:
Following receipt of the complaint, the OCO initiated a preliminary examination and wrote to the Department of Education & Science, seeking an outline of their understanding of this particular case.

The OCO also requested an account of the process of finding, applying and enrolling in a school a child with a diagnosis such as this, as well as information on how the appropriateness of an educational placement is determined, including details of the liaison process that takes place between the relevant HSE professionals when deciding whether a child should attend preschool or primary school.

Given concerns raised by the parents regarding the distance of the school and the travel arrangements for this child, the OCO sought confirmation that the school selected, 25 miles away, was the nearest suitable school and if the child was entitled to school transport. The OCO queried if any other school nearer to the child was considered.

The OCO had previously been advised by the Department of Education & Science that over half of children enrol in primary school in the September following their fifth birthdays and that there is evidence to suggest that this later start in school is of benefit to children both educationally and socially. The Office thus sought clarification of the rationale for this child with autism to be enrolled in primary school at age four.

Outcome:
In response, the Change Management Unit of the Department of Education & Science stated that it was their belief that the Home Tuition Grant had in fact been approved in respect of this case, despite the existence of correspondence from the Department which stated that the Grant had been refused. The following day, the complainants phoned the OCO to state that the HTG had been granted for the school year and that the payment was backdated.

It was concluded by this Office that the Department of Education & Science had now offered adequate redress in the matter for the complainant.

Exemption from study of subject

The complaint

K has an acquired brain injury resulting from an accident. An application for exemption for K from the study of a subject was made to the Department of Education and Science. The criteria for exemption are set out in Circular M10/94. The Department of Education and Science Inspectorate determined that K did not meet the criteria for an exemption as set out in Circular M10/94 and the request was turned down. An appeal of the decision to the Department of Education Inspectorate upheld this decision.

Investigation
In considering this complaint the Ombudsman for Children is obliged to have regard to the best interests of the child concerned. She is obliged to consider whether the child has or may have been adversely affected by the action and whether the action was contrary to fair or sound administration. During the examination of the case it emerged that the Department of Education had strictly adhered to the guidance offered by Circular M10/94.However there was clear evidence, supported by the child’s parents and by medical and other professionals that the study of this subject was causing the child considerable distress.

Findings
The Ombudsman for Children upheld the view that the child had been adversely affected by the decision not to exempt her from this subject. However she concluded that the Department of Education and Science had adhered to criteria for exemption and did not find any evidence of maladministration on the part of Department of Education and Science. This then left the question of whether the circular itself was flawed or needed review given that there was no apparent maladministration and yet a child was clearly adversely affected by the action.

Recommendations
- That the Department of Education and Science reconsider K’s case.

- That the Department of Education and Science explored, perhaps in conjunction with medical experts, whether the criteria in the circular needed to be widened to include children like this child with an acquired brain injury.

Response
- The Department of Education and Science reviewed the case and K was awarded an exemption.

- The Department of Education and Science stated that the widening of this circular Would be considered in a root and branch review of the criteria for subject exemptions which is currently in progress.

School complaint handling process

Complaint:
A complaint was received from a mother on behalf of her 10-year-old daughter, regarding the handling by her daughter’s school of an incident in class. It was alleged that the child was struck on the hand by her teacher and subsequently ‘harassed’ in an inappropriate way by both the teacher concerned and the Assistant Principal. This culminated in her offering an apology for alleging the teacher had hit her. Furthermore, it was contended that despite the child expressing a wish to talk to her mother and go home, no contact was made with the mother by staff. The parent expressed disappointment that in its handling of this complaint, as well as a previous incident, the school had been difficult to contact and procedures had not been made clear.

Investigation:
In accordance with the Ombudsman for Children Act 2002, the OCO determined that a preliminary examination would be commenced to assess the admissibility of the complaint, to better understand the issue from the perspective of all parties involved and to decide on the level of intervention, if any, required from the Office.

Three main issues were identified as examinable by the OCO. These were:

– the nature of the interview which took place with the complainant child by the teacher
concerned and the Assistant Principal;
– the concern that parental consent was not obtained before this interview took place;
– the adverse affect that the school’s administrative actions may have had on the child.

The OCO had no authority to determine whether the alleged incident involving the child and the member of staff actually occurred or not. The Office was aware that the Board of Management was satisfied, on the evidence available, that there was no inappropriate behaviour on behalf of the teachers concerned. However it was made clear to the Office that this was not accepted by the complainant. The role of the OCO, therefore, was to examine the administrative actions of the school and subsequently the Board of Management in dealing with the alleged incident.

Firstly, the Office did not find evidence of maladministration in the Board’s handling of the formal complaint with respect to their own complaints procedure. However, administrative questions remained regarding the original interview/investigation process that took place on the afternoon of the alleged incident. After careful consideration of the information received during the course of the preliminary examination, the Office was sufficiently satisfied to determine that:

– The child was involved in an interview/investigation with the Assistant Principal and the member of staff about whom the allegation was made, which focused on the substantive issue of whether the alleged incident occurred or not.
– Parental consent was not obtained for this investigation meeting with the child.
– The child got upset during this interview.

The information provided by the school did not specifically identify any administrative procedures for interviewing a child in such circumstances. In general, the OCO is aware of a lack of guidelines pertaining to how schools should determine the circumstances and manner in which children should be interviewed. This is a matter that the Office has raised directly with the Department of Education & Science.

After examination, the OCO was of the view that a school seeking to conduct an investigation into circumstances such as these should ensure, in the interests of impartiality and fairness of procedure, that any staff member who is the subject of an allegation should not be present when the complainant is being interviewed. From the information provided by the school, the OCO understood that the issue of contacting parents at the request of pupils is dealt with on grounds of reasonableness, and judged at the discretion of the staff concerned. It is the view of this Office that if the school was insistent in conducting the investigation interview in this way then parental consent should have, in the first instance, been sought and obtained. It appears to the Office that this failure to seek consent was an undesirable administrative action.

The Office noted from the information received that the child protection policy of the school is reviewed on a regular basis. The OCO encouraged the school to consider the above points when reviewing both its child protection policy and general policies related to conducting interviews and contacting parents.

The OCO understood that the child was upset during this particular interview process, but could not, however, determine whether the adverse effect which occurred was due to the inherent nature of a child being subjected to an interview/investigation process, the nature of what occurred during that interview, or if it was linked to the original alleged incident.

Outcome:
After a full examination, it was considered that further investigation of these matters was not required by the Office at this time. The OCO commented, however, on the administrative actions taken and encouraged further action by the school to address the issues raised. The OCO wrote to the school, informing the Principal and Board of Management of the conclusion of the preliminary examination and outlining the findings and views of the Office as detailed above. This correspondence afforded the opportunity for the school to respond to the OCO with any comment that they wished to make regarding any of the findings.

The school responded accordingly and indicated that the suggestions made by the Office are to be taken on board. The Office understood that the matter was to be discussed and progressed at the next Board meeting.

Child's right to education

The complaint

The Office has received a number of complaints from non-Irish nationals who considered that their child was being denied their right to an education. The Department of Justice Equality and Law Reform had informed the parents that, due to conditions set out in their visa, their children could not avail of public education.

Action

This is an issue which raises important human rights and policy considerations. This Office made contact with the relevant authority and indicated that all children have the right to an education and that a child should not be denied this right on the basis of the immigration status of their parents.

Response
The Department of Justice Equality and Law Reform agreed to consider making an exception for the current school year (2007). All of the children concerned have remained in public school.

Postscript
The immigration legislation is currently changing and will most likely determine the situation into the future. In this case the Ombudsman for Children has continued working on this issue in accordance with Section 7 of the Act which provides that the Ombudsman for Children can advise on any matter related to the rights and welfare of children. The Ombudsman for Children was invited to comment on the new Immigration, Residence and Protection Bill, 2008. In her Advice, the Ombudsman expressed concern at the extent of Ministerial discretion provided for in the Bill for the setting of conditions for residence in the State.

She emphasised that children’s Constitutional rights – including the right to free primary education – and their rights under the UN Convention on the Rights of the Child are nondependent on their nationality. She recommended that an explicit requirement for the Minister to have regard to those standards – especially the best interests principle contained in the UN Convention on the Rights of the Child – when making such regulations be included in the Bill.

July Provision for a child with Autism Spectrum Disorder

Complaint:
A mother contacted the OCO on behalf of her son, aged 12 at the time and diagnosed with an Autistic Spectrum Disorder since 2002. He had been attending mainstream primary school and in receipt of maximum resource teaching hours since 2003 as a result of this diagnosis. In 2006 she became aware of the availability of home-based tuition under the July Provision scheme, administered by the Department of Education and Science.

This scheme provides for the extension of educational provision through the month of July for children with a diagnosis of severe to profound learning disability and for children with a diagnosis of autism. This is usually provided by the school, though where the child’s school does not participate, the family can apply for a grant for home tuition.

The mother’s complaint related to a lack of information and awareness about her son’s entitlement to apply for this service and the Department’s refusal to offer retrospective payment for the years he had missed out on the scheme.

Investigation:
The Office sought information from the Department of Education and Science, including the scope of the July Provision scheme, criteria for eligibility, and the process for informing
potential recipients of its availability.

Having investigated the matter, the Office found that the administrative actions of the Department of Education and Science had adversely affected the child concerned, were the result of negligence or carelessness and were based on an undesirable administrative practice.

During the investigation the Office was advised that the July Provision scheme was initially developed for children with severe to profound learning disability. In 2000 the scheme was extended to enable children in autism classes to benefit from additional educational input. The DES initially advised special schools and mainstream primary schools with special classes of the availability of this scheme for children with autism. In 2002 grant aid was provided to facilitate home-based provision in order to ensure that children were not disadvantaged if their school did not participate in the scheme.

The Office found that a central issue pertaining to this complaint appears to have been that children with a diagnosis of autism attending mainstream school were not considered when the initial administration of the home-based tuition scheme was introduced.

However, when parents of such children did apply, these applications were sanctioned by the Department where the eligibility criteria were met. Nonetheless, this lack of planning resulted in parents of children with autism attending mainstream school not being notified of its existence, and moreover, there seemed to be no mechanism in place able to identify these families in the first instance.

Recipients of the scheme in these circumstances only became aware of its availability by word of mouth and their applications dealt with individually. Thus, it appeared to the OCO that there had been inadequate planning by the DES with respect to identification of children who could benefit from the scheme when it was introduced, specifically children with a diagnosis of autism attending mainstream school. This has resulted in children whose families were unaware of the scheme’s availability being disadvantaged.

Outcome:
During the course of this investigation, the DES took steps to improve the process of identifying children who may benefit from the July provision scheme and communicated its availability to all primary schools in receipt of resource hours for children with autism.

The Office also recommended that the DES:
– ensure that all children who are entitled to apply for the July Provision scheme are made
aware of its availability;
– consider developing programmes for raising awareness of services available;
– develop policies and guidelines specifically in relation to the July Provision scheme in
order to ensure its appropriate administration; and
– with regard to retrospective payment, the Office encouraged the Department of Education and Science to give consideration to what alternative measures could be taken to remedy or mitigate the adverse effect for this particular child.

In response, the Department of Education and Science advised that steps were taken to ensure that all children attending mainstream primary school who are entitled to apply for the July Provision scheme are made aware of its availability, specifically special schools, schools with special classes and mainstream schools receiving additional resources for children with autism. The Office also expressed concern regarding the communication of the availability of home-based provision to pupils at post-primary level, and was subsequently advised that in 2008 the DES had taken similar steps to communicate the availability of the scheme as had been undertaken for primary schools.

The Department also indicated that:
– Consideration would be given to the publication of a circular in relation to the July
Provision scheme; and
– Any new service or scheme administered by the Special Education section will be
advertised on the website.

The Office expressed concern regarding the adequacy of the latter and encouraged the Department to reconsider this proposal in line with the more comprehensive approach taken currently to communicating the availability of the July Provision scheme at primary level. The Department subsequently advised that there is a range of mechanisms for communicating availablitily of new schemes.

The Department also advised that a review of the July Provision scheme is currently under
way.

This Office has expressed concern regarding the adverse effect on the child at the centre of this complaint, due to not being able to avail of his entitlement to home tuition under the July Provision scheme during 2003-2005. The Department has advised that as it is not in a position to measure the adverse effect, if any, and it considers that adequate resources are available to the child in his current placement, it is thus of the view that alternative measures are not warranted. The Office accepted that it may not be possible to quantify and measure the exact extent of this adverse effect and determine whether this can be recuperated at a later date. Notwithstanding the difficulties in determining the extent of the adverse effect, the Office nonetheless considers that this does not represent a bar to a public body attempting to offer redress. Given the resources being provided to the young person in the current placement and the extension of the July provision scheme to postprimary schools, no further steps were recommended by the Office.