Top Tips for Schools: Dealing with a Designation Notice from the NCSE

The National Council for Special Education is responsible for the coordination and management of children to special classes and special schools nationwide. The NCSE has the power to direct schools to admit children with special educational needs. This power does not mean, however, that school admissions policies should be automatically set aside in favour of NCSE directions. Directions from the NCSE will only be effective when the school has the capacity to accommodate children with special educational needs under its admissions policy. Our Education Law team provides some top tips for schools.

What you need to know

• The National Council for Special Education (NCSE) can direct a school to admit a child with special educational needs.
• The NCSE must follow a two-step process of designation and direction specifically for the identified child before the school is obliged to admit them.
• The NCSE must consider the availability of school places and the ability of the school to accommodate the child.
• A designation notice can only be made for a specific, identifiable child.
• Schools have a legal obligation to adhere to their own admissions policies under the Education Act 1998, including regarding their waiting lists.

The NCSE does not have an unfettered power to order schools to admit students with special educational needs. It must respect the proper procedure set out in section 67 of the Education Act 1998.

Two-step process

The first step of the process is the designation notice. The NCSE, either of its own volition or at the request of parents, may designate the school which a child with special educational needs is to attend. In making a designation, the NCSE should have regard to the availability of places in schools in the locality. The NCSE must also consider a school’s ability to accommodate the child concerned and to meet his or her educational needs.

The designation must be for a specific, identifiable child. The NCSE does not have the power to issue a designation notice for an indeterminate number of unidentified children.

It is our experience that schools are being requested to respond to designation notices when they are not being informed of the identity of the child or the additional needs of the child. This information is what the NCSE is required to provide schools at a minimum when using these powers. Otherwise, schools cannot make meaningful representations in return. This particular aspect was raised in a recent case that we took against the NCSE on behalf of a school in the High Court.

The NCSE is obliged to consider any representations made to them by the board of management of a school. A failure to meaningfully engage with any representation of this kind may amount to a breach of fair procedures. When engaging with the school’s representations, the NCSE must give reasons as to why it is ignoring the school’s concerns. If the NCSE fails to give adequate reasons, this could amount to breaches of fair procedures.

Only at this point may the NCSE carry out stage two of the process, which involves directing the board of management of a school to admit the identified child.

Admissions policies

The Education Act 1998 requires schools to create and publish admission policies. Section 62 of the Education Act 1998 provides that decisions on the admission of a student into a school should be based on the implementation of the school's admission policy. As part of the admission policy, where a school is oversubscribed, schools are obliged to create and operate a waiting list system. The waiting list should be ordered by the priority assigned to student applications under the school’s admission criteria.

Schools are obliged to comply with their own admission policies, which includes those provisions related to waiting lists. A failure to comply may result in an appeal to the Department of Education and Youth, under section 29 of the Education Act 1998.

The inter-relationship between section 67 of the Education Act 1998 and those provisions of the Education Act related to admission policies has not yet been addressed by the Courts. Despite this, it is unlikely that the two-step process set out in section 67 could be interpreted as overriding the obligation of a school concerning its own admission policy. Section 67 itself does not refer to this scenario as a possibility. Also, section 67 of the Education Act 1998 explicitly states that the NCSE must have regard to the ability of a school to accommodate a particular child. Where the NCSE asks a school to ignore its waiting list and request a school to enrol another student, we believe this is contrary to the Education Act. As a result, it could leave a school in a difficult position with other parents whose child would have been entitled to a place.

Conclusion

When faced with NCSE designation notices, schools should remember the following key points:

• Schools must always adhere to a published admission policy, including those provisions relating to waiting lists.
• A failure by a school to comply with its own published admission policy may result in section 29 appeals.
• A section 67 designation notice can only be made for a specific, identifiable child.

The NCSE is obliged to engage with a school’s representations relating to a designation notice. This obligation includes giving reasons for its decision to ignore a school’s concerns.

For more information and expert advice on school admissions, contact a member of our Education Law team.

People Also Ask

The content of this article is provided for information purposes only and does not constitute legal or other advice.