Autistic boy loses case on State funding

The parents of an autistic boy were clearly devastated yesterday after losing a test High Court action aimed at securing State funding for a specific form of education according to the system of applied behavioural analysis (ABA).

"The light of learning has been all but extinguished for Seán today," a tearful Yvonne Ó Cuanacháin, mother of Seán (six), Mountain View, Arklow, Co Wicklow, said.

She was speaking after Mr Justice Michael Peart concluded that the programme of education being provided by the State for Seán - an eclectic and model A programme - was "appropriate autism-specific educational provision". On that basis, he declined to make orders requiring the State to fund an ABA programme.

The court will give its decision next month whether the State has failed to meet Seán's past education needs over a two-year period and, if so, whether he is entitled to damages.

In a statement, Ms Ó Cuanacháin said she and her husband Cian had to go home and face Seán "knowing the progress he has made with ABA" and that the eclectic and model A programme "will not meet his needs but will essentially damage our son".

Ms Ó Cuanacháin said Minister for Education Mary Hanafin, had made ABA provision for some autistic children and the "only hope now" was that she would extend that provision to Seán.

She believed the experts called for her side in the case had "emphatically vindicated" their belief that the programme advocated for Seán by the State was inappropriate. However, Mr Justice Peart had decided otherwise.

Ms Ó Cuanacháin also said she and her husband had the "utmost respect" for the judicial system and would not comment on the second part of the case before delivery of judgment on that. That same respect precluded them from detailed comment on yesterday's decision until the reasons for it were available, she added.

The action on behalf of Seán ran for 68 days, involving legal costs of an estimated €5 million, and is considered a test case in relation to whether the State has an obligation to provide funding for education for autistic children according to the ABA method. It is estimated hundreds of children will be affected by the decision.

The State, and experts called on its behalf, had contended the alternative eclectic and model A programme of education now provided for Seán was adequate and appropriate to his needs. Experts for the boy's parents disputed that and contended the ABA system was essential to his progressing.

In outline conclusions yesterday on the main part of the case - the State's obligations in relation to future education for Seán - Mr Justice Peart found the evidence called on his behalf was not sufficient to show that the model of education being provided for him by the Department of Education was inappropriate.

He concluded the programme was appropriate autism-specific educational provision. On that basis, he said, he could not make the declarations and mandatory orders sought, which would have required the State to make provision for Seán into the future according to the ABA system.

The judge said he would give a full detailed judgment later on the reasons for his conclusions on that part of the case. That written judgment would also address the second part of the case - whether the State's alleged delay up to 2004 in having Seán's educational needs adequately assessed represented a failure of its educational obligations and if so, whether Seán was entitled to damages.

Mr Justice Peart noted that the hearing had concluded last July after 67/68 days and he regretted it had taken so long to deliver judgment. He had greatly underestimated the scale of the task. He particularly wished to express his regret to Seán's parents.

The judge said he had decided to give his outline conclusion at this stage on the main part of the case because he was conscious it related to the education of a young boy and hoped to give his full judgment on April 27th.

Seán, through his father, had sued the Minister for Education, the Minister for Health, the South Western Area Health Board, the East Coast Area Health Board and the State arising from their alleged failure to meet his educational and healthcare requirements.

It was claimed the State had failed to provide Seán with adequate and appropriate free primary education - 30 hours of tuition a week - according to the ABA system, which it was contended was an internationally recognised and well-established methodology of teaching children with autism.

In October 2002, Seán was diagnosed as having autistic spectrum disorder and it was said he would require appropriate services from both the health board and the Department of Education. He received home tuition funded by the Department of Education from December 2002. Funding was increased to 15 hours a week by January 2004.

In November 2003, when Seán was three years and four months, he was assessed by an educational psychologist who recommended that he should have access to ABA tuition for 30 hours a week. However, that was not provided, it was claimed.

Since February 2004, Seán has been attending St Catherine's pre-school, Barnacoyle, Co Wicklow, part time, for 14 hours a week. He had access to ABA, which was funded by the State, but for less than half of the required hours, it was claimed. When judgment was reserved in July, State funding for the ABA provision was to cease.