The chief commissioner of the Irish Human Rights and Equality Commission (IHREC) has said that the rights of “far too many” children with complex needs and disabilities are not being upheld under the law.

Sinéad Gibney was speaking as the commission welcomed a decision by the Department of Education to grant two young boys a full allocation of hours on a scheme for students with complex needs.

IHREC had given legal assistance to a mother and her two young sons in making an application to the department for the 2022 Home-Based Summer Programme to Support the Education or Care Needs of Students with Complex Needs.

Terms ‘amounted to discrimination’

The commission says that, under the terms of the scheme, siblings with complex needs in the same household are generally taught together and are entitled to fewer hours overall than children without siblings with complex needs, subject to a few limited exceptions.

The mother involved, however, had received expert advice showing that a shared allocation of hours would not meet the children’s respective needs, and was likely to be detrimental to their development.

IHREC had then written to the department, arguing that, by not taking account of the different special educational needs of siblings in mainstream education, the terms of the scheme potentially amounted to discrimination on the grounds of disability, contrary to section 5 of the Equal Status Act 2000-2018, and the constitutional guarantee of equality before the law.

The department has now agreed to grant individual allocations under the scheme to both children (ten hours for four weeks for each child).

‘Shocking’

The commission said that a teacher/SNA could now be engaged for each of the boys, “thus complying with the rights of the children to an adequate and appropriate primary education under section 7 of the Education Act 1998 and Article 42 of the Constitution”.

“We welcome today’s development, and we hope that the department will proactively adopt a similar approach to other families in similar circumstances,” said Gibney.

The mother in the case, who preferred not to be named, said: “The lack of empathy and understanding within the department towards the differing needs of neurodiverse siblings is shocking.”