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07 Dec 2021

Teen with special needs challenges decision to expel him from school for alleged assault on teacher

Courts

Teen with special needs challenges decision to expel him from school for alleged assault on teacher

The Four Courts, Dublin

A teenager with special needs has brought High Court challenges over a decision upholding his expulsion from the secondary school he had been attending for allegedly hitting a teacher with a brush.

Neither the teen, nor the school he attended, can be named for legal reasons.

The High Court was told that the teen, who has been diagnosed as having several physical and mental conditions leading to behavioural difficulties, was expelled by the school following an incident last year for allegedly assaulting one of his teachers.

As part of the actions it is claimed that the school had failed to put in place appropriate and necessary supports for the child.

Both the HSE and the National Council for Special Education, through its Special Educational Needs Organiser, had been critical of the school's provision of resources to the boy.

As the boy attended a school run by an Educational Training Board (ETB), which replaced the former VECs, he appealed that decision to firstly the ETB itself.

The decision to expel the teen was also appealed to the Department of Education, which appointed a three-person committee under Section 29 of the 1998 Education Act (known as a Section 29Committee) to consider the matter. That appeal also proved unsuccessful from the boy's perspective.

Seeking the orders Derek Shortall Bl, instructed by solicitor Barry Callan, for the boy said that two separate challenges have been brought against both decisions.

Counsel said that the ETB's decision to dismiss the appeal was flawed and in breach of fair procedures. He said that the ETB should have dealt with the appeal as if it was a new full rehearing of the decision.

Counsel said it failed to do so, and had in fact limited the appeal to a review of the decision to see if the school in its decision had correctly applied its code of behaviour and if fair and reasonable procedures had been applied.

The ETB counsel said should have conducted a much broader appeal, and he said had failed to take into consideration factors including reports from bodies including the HSE concerning the students particular requirements given his special needs.

In his action against the ETB and the Minister for Education the boy who is suing through his mother seeks an order quashing the ETB's decision to dismiss his appeal against his expulsion.

He also seeks declarations including that ETB breached his rights to fair procedures by not having a full new hearing rather than considering what was a limited appeal.

He further seeks a declaration that there was a failure by the ETB to have regards to relevant factors which it ought to have considered.

Counsel said that in addition to the action against the ETB's decision his client has also brought a separate judicial review proceedings over the decision made by the Section 29 committee, which they also say is flawed and disproportionate.

In proceedings against the Secretary General of the Department of Education and Skills and the three person committee, the boy seeks to have its decision dismissing his appeal quashed.

The school is a notice party to both actions.

Permission to bring the challenge against the Minister and the ETB was granted on an ex-parte basis by Mr Justice Michael Twomey.

The judge also deemed the second judicial review action brought on the teen's behalf opened, and adjourned it generally.

Both cases were adjourned to a date next month.

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