Threat of fresh legal action over lack of resources for pupils with ‘mild’ Down syndrome

The Department of Education is facing fresh legal action over its exclusion of children with “mild” Down Syndrome from teaching resources that are granted to pupils with learning difficulties.

A decision this week to postpone the introduction of a more equitable system of allocating resources has not only increased the prospect of further litigation over alleged discrimination but has also drawn strong criticism from Down Syndrome Ireland.

Solicitor Gareth Noble, who is representing two families in a test case before the High Court over resource allocations, said a further three families involving children with Down Syndrome were taking legal action, and others may follow suit.

The need for such cases would largely have been removed had the Department gone ahead with the proposed new system of resource allocation, Mr Noble said.

“It might not have 100 per cent resolved the matter” but it would have removed the condition for parents to get a diagnosis above a certain threshold of severity before they could access extra resources, he said.

Resources

The test case is scheduled for hearing in May after the Department consented before the High Court last summer to grant four hours and 14 minutes of additional resources weekly to the two children affected.

The Department said it was a “pragmatic” and “humane” solution, offered on a temporary basis, and it was not conceding any of the claims made on the ground that it wished to avoid “an avalanche” of similar cases.

The two families had argued that department policy tied the hands of Special Education Needs Organisers (SENOs), the officials charged with allocating additional hours. Under Department rules, only children with moderate or severe learning disabilities can gain access to the extra resources.

Crumbs of the table

The Department has argued that children with a mild diagnosis of Down Syndrome can gain access to additional resources through a “general allocation” to each school but Mr Noble said there was no guarantee in practice. “In the words of one principal I spoke to, the kids are left with the crumbs off the table.”

Pat Clarke, chief executive of Down Syndrome Ireland, said the group had been led to believe at a meeting with department officials last month that the new system of resource allocation would go ahead in September.

“We are very disappointed,” he said. The group would be calling on Minister for Education Jan O’Sullivan at a meeting scheduled for next week “to put in place interim measures so children with mild Down Syndrome are granted resources hours, and are not relying on the general allocation model.”

As well as removing the necessity for a diagnosis, the reforms would have redirected learning supports which cost the Department about €600 million a year from wealthier schools to those in more disadvantaged areas. Fears of a political backlash are thought to have informed the decision to postpone the plan and instead introduce it on a voluntary, pilot basis.