The law on special educational needs

You are a person with special educational needs if your ability to take part in, and benefit from, education is restricted, due to a continued physical, sensory, mental health or learning disability.

The law covering special educational needs is complex. It is spread across the Irish Constitution and several other pieces of legislation.

Irish Constitution

The Irish Constitution sets out the role of the State and the rights of parents in providing education.

All children have a constitutional right to free primary education up to the age of 18, including children with special educational needs.

Legislation

The following Acts cover different elements of special educational needs:

• Education for Persons with Special Educational Needs Act 2004
• Education Acts 1998-2022
• Equal Status Acts 2000-2018

Under the Education for Persons with Special Educational Needs (EPSEN) Act 2004, children with special educational needs should be educated in an inclusive setting, unless this would:

• Not be in the best interests of the child, or
• Not be in the best interests of effectively providing education for other children in mainstream education

While the Act is passed, some parts are not yet in effect.

The Act provides that:

• People with special educational needs are educated in an inclusive environment, as far as possible
• People with special educational needs have the same right to access and benefit from education as children who don’t have these needs
• Parents have more involvement in the education of their children and decision making

The Act also established the National Council for Special Education (NCSE) on a statutory basis.

Services for people with special educational needs

The Act sets out services to be provided to people with special educational needs. However, the relevant sections of the Act have not yet been commenced, so the services (including personal education plans) are not yet in place.

Under the Disability Act 2005, assessments of need can be carried out by the HSE. If a child must have their educational needs assessed, the HSE will contact the NCSE, who will nominate a person to complete a Report of Education Needs.

The NCSE is responsible for providing services to school-going children.

The Department of Education provides supports to children with a disability.

Special Education Appeals Board

The Act provides for a Special Education Appeals Board to be set up.

The section of the Act to set up the Board has been commenced, but sections which give people the right to appeal have not been commenced. So, the Board is not yet in operation.

The Education Acts 1998-2022 deal with education generally, but emphasise the rights of children with disabilities and other special educational needs.

The Acts set out certain aims, including:

• Making sure children, including children with special educational needs, can access their constitutional right to education
• Providing a level and quality of education appropriate to the needs and abilities of people in Ireland, as far as is practicable with the resources available

Funding

Under the 1998 Act, the Minister for Education has responsibilities in relation to funding, including funding support services for students with disabilities.

Schools must:

• Use available resources to meet the educational needs of all students, including those with disabilities
• Use State resources to make reasonable provisions and accommodation for students with disabilities and special educational needs (including any necessary changes to buildings, or for purchase of equipment)

The Act also provides that the criteria for funding of schools may allow for the payment of additional grants to schools, considering the level of educational disadvantage.

Support services

The 1998 Act defines support services, including:

• Assessment of students
• Guidance and counselling services
• Technical aids and equipment, including means of access to schools, adaptations to buildings to allow access, and transport for students with special needs and their families
• Provision for students learning through Irish sign language or other sign language, including interpreting services
• Provision for early childhood, primary, post-primary, adult or continuing education to students with special needs, other than in schools or centres for education

Under the Education (Provision in Respect of Children with Special Educational Needs) Act 2022 (pdf), a school can be directed to work with the NCSE and put a special class in place.

Read the Department of Education’s information for schools about providing for children with special educational needs (pdf).

The Equal Status Act 2000-2018 bans discrimination in different areas of life, mainly in the provision of goods and services. The Acts apply to educational services, including private schools and pre-school facilities.

There are specific provisions in the Acts in relation to education, and some of these focus on people with disabilities or special needs.

The Equal Status Acts ban direct and indirect discrimination on many grounds, including gender, religion, disability, race and membership of the Traveller community.

A school cannot discriminate against a student in relation to their:

• Admission, or the terms and conditions of their admission
• Access to any course, facility or benefit provided
• Terms or condition of participation in the school
• Expulsion or any other sanction

Discrimination on grounds of disability

The Equal Status Acts set out certain activities that do not constitute discrimination. The following relate to discrimination on the grounds of disability:

• Schools can make different arrangements for sport for children based on their age, gender, or disability if these are reasonably necessary.
• Schools will not be considered to discriminate against a student with a disability if complying with the legislation would have a seriously detrimental effect on, or make it impossible to provide, services to other students.
• In certain circumstances, discrimination on the grounds of disability can happen if the school fails to do all that is reasonable to accommodate the needs of a person with a disability. If a person with a disability cannot use a service without special treatment or facilities being provided, then the service provider may need to provide such special arrangements if there is only a nominal (small) cost involved.*

* The Act clarifies that the nominal cost issue does not prejudice or dilute the various provisions in the Education Act 1998 in relation to children with a disability. As these provisions all relate to the use of public funds, private primary schools are only obliged to make special provision for children with disabilities if there is only a nominal cost involved.

You can read more about the Equal Status Acts 2000-2018 in the Irish Human Rights and Equality Commission’s Equal Status Acts guide (pdf).