The High Court yesterday refused to grant an order directing the State to fund a special education programme, assisted by two tutors trained in the US, for a five-year-old boy who has Asperger's syndrome, a condition similar to autism.
The order was sought by Luke Downey pending proceedings aimed at securing funding for appropriate education for him.
Refusing to make an order directing the Minister to provide the funds, Mr Justice Smyth said he was being asked to make an order directing a sum of money be paid to the boy in advance, or as an interim payment, effectively of damages which the applicant's family were confident he would receive when the action proper came to be tried.
Liability must be established before damages could be paid. Next month, two other tests cases are due before the High Court which may establish whether the State has an obligation to provide education for autistic children according to the method of Applied Behavioural Analysis.
Last July, Luke Downey was taken to San Francisco to begin a two-year Behaviour Intervention Analysis (BIA) programme.
He is now living at home at Rigsdale, Ballinhassig, Cork, and is continuing to undergo the intensive course for Asperger syndrome.
Through his father, Mr John Downey, the child had applied to the court for finance to enable his father provide primary education suitable for his needs.
According to his father Luke made significant progress since he began the BIA programme, particularly in communication and social interaction.
The court was told that, in March Luke was assessed by a UK educational psychologist who recommended he attend a special school for Asperger syndrome or autism as a matter of priority and a school whose teaching programme was based on Applied Behaviour Analysis.
But when they applied for a place in the CABAS School in School Avenue, Glasheen, Cork, they were informed the 12-pupil school was full and there was a waiting list of 25.