The situation of handicapped children
The Act on Public Education specifies the following categories of handicapped pupils and students: children with disabilities, children with sensory disabilities, children with mild or moderate mental retardation or speech disabilities or children with other disabilities. According to the Act, children with other disabilities are those children with general development disorders, those facing disorders of partial capabilities and disorders of performance at school owing to other disorders of psychological (mental) development, and who are consequently, permanently hindered in development and in the learning process.
In view of the complaints filed with the Office children with mental retardation and those with 'other disabilities' may perhaps be the most exposed and vulnerable participants of the education system. Accordingly, the Office devotes special attention to complaints submitted by or with respect to such children. A number of complaints pointed out that some municipal governments, primarily of smaller communities, do not have the resources and requisites for the provision of the mandatory services for these children as prescribed by law. In one particular case, it was not possible to find an institution that could provide the appropriate educational services for a handicapped child, not only locally, but also on a county level. It is well known that many local governments find it difficult to raise the necessary funding to carry out all of their mandatory tasks. However, the failure to provide such services as a result of the lack of resources violates the rights of both the child and the parent. In many cases desperate parents came to the Office asking for assistance for resolving of the following conflict: their handicapped child had been rejected by a number of institutions with regular syllabuses and the y had tried to integrate the child in various other institutions. This added further angst to his or her basic problems. The municipal government could not provide the appropriate teacher for the handicapped child. There was no institution that could provide the services necessitated by the deficiencies of the child. If the parents fail to go on searching for yet another, perhaps appropriate institution, then they will violate the constitutional obligation to carry out mandatory schooling of their child. Regarding teachers, another consideration is that although expert committees propose integrated teaching and education of children with various 'other disabilities', not all teachers are prepared for the related challenges. In some instances, their qualifications do not always extend to the appropriate management, development and evaluation of the different requirements of these children. In many cases, for instance, children with behavioural disorders, hyperactive children, children with dyslexia or counting difficulties were treated simply as 'bad children' or children of poor performance, handling them as a heavy burden on the institution.
E.g. autism
E.g. dyslexia, dysgraphia, dyscalculia, mutism, hyperactivity, concentration problems
Lack of appropriate institutions
Pursuant to the Act on Local Governments each municipal government is obliged to provide for education at the primary school level. This mandatory task has to be performed in accordance with the provisions comprised in the Act on Public Education. According to the Public Education Act, the range of duties to be performed on a mandatory basis by municipal governments also includes the provision of primary education for children with physical and sensory disabilities, mild mental retardation, speech and other disabilities alongside. These children should be educated/taught together with non-disabled children. Consequently, it is mandatory for a municipal government to perform its obligation by providing primary education for such children.
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The parents of a hyperactive pupil living in a large country town asked the Office to help resolve the schooling problem of their child. They complained that their child had to fulfil his schooling obligation as a private pupil as the local general education centre did not allow their child to attend the local school. This was despite the fact that according to an expert opinion he should have been taught in the school community. Before submitting their complaint to the Office, the parents had sent letters to the local mayor and notary who then answered that there was no special institution in the town that could provide the appropriate schooling service for children with 'other disabilities'. This was confirmed by the expert and rehabilitation committee of the local government council analysing learning capabilities, in spite of the fact that 136 pupils had been found by them to be in need of such type of education. Pursuant to the above-mentioned pieces of legislation, the Office submitted an initiative to the local government to provide for the requisites for the education of children with 'other disabilities'. (VI/211/2000.)
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According to the Act on Public Education a child with physical disability, sensory disability, mental retardation, speech disability or other disability is entitled to receive pedagogical, special educational and/or conductive educational services as required for his or her condition from the date of the diagnosis of such condition.
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One complainant has a nine-year-old daughter with moderate mental retardation as well as physical disability. As a result of conductive development the girl is able to walk but she needs help when moving. During the 1999/2000 school year the girl studied as a private pupil, with ten classes a week, at a rural primary school of regular syllabus. In February 2000, the local government notified the school that according to its deed of foundation the school could not have undertaken to provide teaching facilities for the girl, therefore, the local government could no longer provides the necessary funding. Unfortunately, institutions for children with physical disabilities did not admit the girl because according to the degree of her disability she did not qualify for such services. According to the local government, since there is no school in town that could provide the education as would be required by the disability of the girl, the municipal government proposed that she should be taken to another town where there is a boarding school type institution for handicapped children. However, the girl's mother insisted on keeping the child with the family and requested that she be provided with the education services as required by her condition and level of development. In response to the request submitted by the Office and based on the opinion of the county expert and rehabilitation committee analysing learning capabilities and the National Mobility Assessment Expert and Rehabilitation Committee, the chief county notary initiated a conciliatory negotiation with the service provider institution and the local government in charge of the institution. This resulted in a favourable solution. Beginning with 2000/2001 school year, the girl was able to satisfy her schooling obligation. She did this by being a private pupil at a school located in another town. However, her weekly ten-hour development course is provided for in the girl's hometown, with the involvement of an expert employed by the institution located in the other town, based on the request of her mother and in consideration of her limited mobility. (VI/228/2000.)
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The lack of institutions providing services to deal with the various types of disabilities may force local governments and local schools to adopt a wide array of solutions. For instance, in order to enable children living in small municipalities to perform their schooling obligations, institutions may undertake to provide services for theses children even though it contravenes their deeds of foundation. In addition, they do not have the statutory requisites required for the education of handicapped children. Consequently, the best intentions may sometimes lead to serious infringements.
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A fifteen year-old girl with mild mental retardation attended the 6 th grade in Budapest in a school with special syllabus during the 1999/2000 school year. In March 2000, the family moved to a small village and the girl completed the last two months of the school year in the local school. Since, however, there was no class with special syllabus in the local school and since according to the expert panel's opinion the girl was suitable for integrated education, she joined the 5 th grade of normal syllabus. The child, however, could not meet the normal requirements of the various subjects; therefore, she failed in a number of subjects. In her year-end report it was recorded that she failed the fifth grade. When her mother informed the school that the girl already had a valid certificate of completion of the fifth grade the school made out another report, this time stating the failure of completion of the 6 th grade.
In this situation which necessitated quick decision we called the deputy schoolmaster by telephone and subsequently we confirmed what had been agreed on by phone, in a letter. We drew the attention of the school management to the possibility provided for by Article 27 (2) of Decree No. 11/1994. (VI. 8.) MKM on the operation of education institutions. According to which, if a pupil has not satisfied his or her learning obligation by the time of the beginning of the following school year, because he or she has been granted permission to take the necessary examinations at a later date, the given pupil may continue his or her studies in the next grade until the expiry of the deadline specified for passing the necessary examinations. Accordingly, the teachers' board of the school decided that the girl may take a classification examination in September and until the date of the examination she may continue attending school in the 7 th grade. Later on the schoolmaster informed the Office that the girl had passed the examination, therefore, she was permitted to continue attending the 7 th grade. Thereafter, the complainant and the schoolmaster both informed the Office that the family returned to Budapest and the girl returned to her former school, i.e. in an institution providing the education services required by her condition. (VI/379/2000.) |
Another complaint submitted to the Office revealed that because of the lack of an institution that would provide the services required by the disabilities of children, the parents concerned established a school by a civil initiative.
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A foundation school established by the parents concerned, for the education of children with disabilities, submitted a complaint to the Office stating that the local government did not provide assistance to the school by letting them rent a building. Indeed, the local government had launched a legal proceeding against the school. The parents objected to this, arguing that their initiative was unprecedented in Hungary. In addition, the school programme had been elaborated with the involvement of experts of international renown, and the children who had been excluded beforehand, were making good progress. Subsequently, according to the available documents, also confirmed by a decision taken by the Minister of Education, the Office established that in the course of the legal proceeding carried out by the chief notary of the county government, it was proven that the requisites for the proper long term performance of the educational activities were not available in the institution. Consequently, the suspending of the operation of the school was legally justified. We explained to the complainant that their initiative was really a stop gap measure and an example to be followed by others. However, it is in the interest of their children that they receive proper education services as governed by the law. (28/1999.)
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It is clear from the above examples that the pupils' right to education, education as befits their capabilities, can only be ensured in compliance with the statutory guarantees.
A number of parents complained that they could not find educational institutions for their autistic children belonging to the category of children with other disabilities. Some of them did not even ask for an investigation to be conducted by the Office. Instead, they only wanted to draw the Office's attention to the difficulties they faced in addressing the handicap of their children. Since autism is not considered to be a type of mental retardation, expert committees usually propose the education of autistic children in schools operating on the basis of normal curricula. However, the question is whether the local primary school with normal syllabus has a teacher who is qualified to deal with this type of handicap. Moreover, in some cases even the expert committees or local governments do not have sufficient information to be able to recommend an appropriate teacher qualified for the education of children with disabilities. In such cases sometimes the desperate parent makes attempts to resolve the problem himself or herself.
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One mother submitted a question to the Office whether her 8 year-old autistic child could be taught as a private pupil as there was no school in his hometown that could provide him with the necessary services. Following the investigation performed by the committee assessing learning capabilities, regular primary school teaching was prescribed for the child with specific afternoon development programme for autistic children. According to the parent, however, because of the lack of a teacher qualified for the teaching of children with disabilities, no primary school admitted the child, or rather, one school admitted him for a probation period but the child could not be integrated into the class. In addition, he could not be admitted to a school with special syllabus since he was not considered to be a mentally retarded child.
After several rounds of negotiation with the education department of the local government and the mother, and including the head of the previous school that the child attended, it was found that both the local government and several schools would have provided the requisites for the education of the child but his mother had failed to co-operate with them. She insisted on turning her son into a private pupil. Also, when her son did not feel like going to school she respected his will. The Office recommended some boarding school type institutions specialising on the education of autistic children, but the mother refused to accept any one of them. As a result, we closed the case. It was pointed out, however, that since her child was still of the mandatory schooling age, the parent was in charge of ensuring that he attended school. Failure to do so would constitute an infringement. (VI/101/2000.) |
Expert committees
Establishment of disability is a task performed by committees, made up of experts evaluating learning capabilities. Based on its examination, an 'expert committee' makes proposal concerning the provisions of the appropriate services for a child as regards the framework of special care. This includes the mode, form and location of service provision, and the special educational services to be provided along with such service provision.
Examinations by expert committees, concerning the evaluation of a disability, are initiated as per request or agreement by the parent. A parent may ask for such examination at any time. An educational institution that deems it necessary that a pupil undergo such an examination, the institution is obligated to inform the parent of this. It must specify the reasons for the initiative and invite the parent to participate in the examination by the committee. According to the above decree the evaluation of a child with disabilities is also part of the responsibilities of the expert and rehabilitation committee. The decree also regulates the conditions of the performance of the examination. Pursuant to Article 13 (2) of the Decree the parent has to be present for the expert examination to be started. According to Article 14 (1) e) of the Decree, based on the results of its evaluation, the expert and rehabilitation committee can decide whether the child can perform his or her schooling obligation. This can be accomplished either exclusively by attending school, or by attending school and as a private pupil or exclusively as a private pupil. The parents must make the final decision as to which.
Several parents complained that they had not been informed in advance by the expert committee of the examination of their child. And according to some complaints the committee, initiated the placing of the child as a private pupil without informing the parents but stating in its application that the parent also asked for this. The following case entails both elements of infringement.
Pursuant to Article 12 of Decree No. 14/1994. (VI. 24.) MKM on Mandatory Schooling and Special Educational Services
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One parent complained that the members of the expert and rehabilitation committee had examined his child on numerous occasions without notifying him. Also, he was not informed of the results of the examinations and learned the findings of the examinations only much later. After the examinations, the committee came to the conclusion that the child can conduct his studies only in a special syllabus school and only as a private pupil. In its expert opinion communicated to the parent, however, the establishment of the legal position of the child as a private pupil was shown as a request of the parent and the school.
The Office established that committee violated the law for they had conducted the examinations without informing the parent and without the presence of the parent. Consequently, we made an initiative to the head of the expert and rehabilitation committee asking him to conduct examinations performed by the committee always in line with the relevant legal regulations, by informing the parents in due time and in the presence of the parents. Documents should state the truth and the head of the institution should always ensure compliance with the law. The head of the committee accepted our recommendation. (VI/164/2000.) |
Disregarding the legal regulations in regards to examinations performed by expert committees may, of course, result not only in grave violation of the rights of parents but also in that of pupils' rights. In one of our most salient cases, ten pupils of a primary school, each of them of different ages and in different grades, received education of restricted syllabus from September 1994 without the performance of the statutory examinations. These are fundamental pre-requisites in assigning of children to special syllabus schools. Article 30 (8) of the Act on Public Education stipulates that decisions concerning whether a child or pupil has difficulties in integrating with his or her group or whether he or she has some kind of disability, is to be made by an expert and rehabilitation committee. Request for such a decision is to be made by an education consultant.
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The majority of the pupils involved in the following case were not handicapped. Thus their transfer to classes of special syllabus violated the relevant statutes of law. Each child has a constitutional right to protection and care. This is to be provided by his or her family, the state and by society as it is a requirement for his or her proper physical, intellectual and moral development. These rights (Article 67 of the Constitution) were violated. The events in question also could be categorised as discrimination as specified in Article 1 of the UNESCO Agreement on the Fight Against Discrimination in Education. Law Decree No. 11 of 1964 also promulgates this. The legal definition of 'discrimination' covers many types of behaviour that result in exclusion from, restriction of the provision of benefits. Behaviour whose aim or consequence is to terminate or hinder equal treatment in the area of education, namely: [...] restriction of a person or group to a lower level of education. Furthermore, the above resulted in the infringement of the pupils' rights provided for in Article 10 (3) of the Act on Public Education. This Article provides for an education and teaching as befits their capabilities, interest and personal needs.
The new headmistress of the school, upon taking over the management of the school and having recognised the infringing transfers of children to the classes of special curricula , returned each pupil to their original classes. No expert opinions had been issued that would have supported the transfers. However, the pupils that had been taught in the less intensive special curriculum, as compared to those enrolled in the regular curriculum, could not catch up with their peers without expert assistance.
The Office asked the chairman of the county assembly to take the necessary procedures to carry out the recommended tasks in order to ensure compliance with the law. The severe infringement was regarded as a critical situation from the aspect of pedagogical considerations.
After the teachers of the school made an evaluation of the concerned children's educational level and established what they had attained in the regular curriculum, it was recommended that the designated experts of the county pedagogy institute should elaborate individual development plans. On this basis, the children would be able to catch up with their peers and return to being taught the normal curriculum in accordance with their capabilities. If they had been found to have varying levels of knowledge of the different subjects, the most highly talented ones should be allowed to acquire several terms' materials in the course of a single term. If the expert examination of some pupils is required, it should be carried out promptly. Following the preparation of the individual development plans, the county pedagogy institute should designate qualified teachers to teach those children needing special education. If necessary, hiring part time teachers should also be considered for the implementation of the plans.
Also, we prepared a recommendation addressed to the municipal council to initiate disciplinary measure against the teachers and the notary, who had committed 'serious negligence' in the given case. The implementation aimed to ensure legal compliance is still in progress. (VI/289/2000.) |
Considering the fact that the deficiencies and failures described in this chapter, which resulted in the violation of the civil rights and particularly those of a high-risk group of pupils, we considered it justified in launching a comprehensive nation-wide investigation. Taking into account the above case, Dr. Sándor Illyés, a university professor, has been designated to carry out the national study. Also, it is planned to review the deficiencies in the legislation and its' application. In our view, despite the fact that the goals of government regulation are in line with the requirements of children with disabilities, the associated and evolving system of guarantees is not yet satisfactory. Petitions submitted to the Office show that legal bodies participating in the provision of services for children with disabilities do not always utilise all of the possibilities available. Also, they often have to face the problem that the system of service provision, as required by law, has not even been implemented at the local level. In view of the cases submitted to the Office, it seems necessary to investigate the system for provision of these services. As regards to teaching of children with 'other disabilities', an intensive co-operation is required between teachers qualified in different fields. As has been mentioned, committees tend to recommend the provision of educational services for such children to be offered in schools of regular curriculum. Such schools need to co-operate with teachers qualified for teaching children with disabilities. These specialised teachers must co-ordinate with other such teachers in the providing of services for children with 'other disabilities' as in some cases a child with several disabilities will require teachers qualified in several fields at one time. The nation-wide study will investigate the activities of the 34 expert and rehabilitation committees operating in Hungary. From the findings, the Office aims to identify the models that are being successfully applied in various Hungarian counties.
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