Enforcement of the Rights of Students with Special Educational Needs
The complaints arriving to our Office indicate that pupils with special needs and their parents are probably the most exposed participants of public education. The origin of the defencelessness of parents is often the lack of information and the fact that because their children are different from them as well, they need assistance with their upbringing.
For the persons working in public education the limitations of the learning ability of the pupil are a simple fact which they have to consider in their work. However, it should not be forgotten that for a parent the limited ability of a child is a problem to come to terms with. No parent can be blamed for having difficulties in accepting the different state of their child, especially when the parent is confronted with it by outsiders - teachers, doctors or special educators. On the other hand it should be made clear that from the moment of diagnosing special need or other disturbance in development the independence of the parent in decision ceases in several public education issues - e.g. free choice of training and educational institution, choice of private student status. The persons working in public education should strive by all possible means to
make the parent accept that the limitations on parents' rights and the stipulation of co-operation obligation happen in favour of the child (pupil) and not against the parent. Against this background, our Office acts with extreme and increased care in cases arriving from pupils with special educational needs and their parents, and the complaints and requests concerning them.
A new feature of the amendment of Public Education Act in year 2003 is that it does not use the terms handicapped child, handicapped pupil and child (pupil) with other handicaps, but refers to children (pupils) who need services different from the normal in their development as 'children (pupils) with special educational needs'. The amended wording of the Act lists the handicaps and development problems that may form the basis of identifying special educational needs. A child (pupil) with special educational needs is someone who - based on the professional opinion of an expert and rehabilitation committee - suffers from physical, sensory, mental or speech handicap, autism, or in the case of suffering from several handicaps cumulatively handicapped, or who, due to problems in his/her psychological development, is permanently and gravely hindered in the process of training and studying (e.g. suffers from dyslexia, dysgraphia, dyscalculia, mutism, abnormal hyperkinetic condition or abnormal activity condition). The listing of development problems in the act is only of example level, so special educational needs can be established by uncovering other disturbances not listed there.
Pursuant to Paragraph (1) of Article 30 of the Public Education Act it is the right of the child (pupil) with special needs to receive pedagogical, special educational, conductive pedagogical care within the framework of special care as made necessary by his or her state from the time his or her special needs are identified. Special care shall take the form of early development and care, kindergarten provision, school education and preparatory sessions, according to the professional opinion of the expert and rehabilitation committees.
The above regulation clarifies the dual role of expert committees. First, the right to a given care is established by issuing the professional opinion by the expert committee, which means that without a professional opinion, pupils can not receive special provision. Second, based on special expertise and the information available to them, the expert committees make proposals for specific forms of provision which serve the development of the child (pupil).
The most important aim of the examination is to identify or preclude that the pupil suffers from some handicap and to draw up a proposal concerning the most suitable form of education from the aspect of the development of the pupil. Beside this, the professional proposal orients the parent, the teacher and the head of the institution in several other aspects by declaring a position in questions like the pedagogic methods that should be applied, the exemption from certain subjects or subject parts, or private learner status. Therefore the participation of the expert committee is important not only because it can help the parent in the choice of a suitable institution but also because professional opinion with legal effect and binding force concerning the parent, the pupil and the institutions in cases governed by the Public Education Act can only be issued by the organs determined in the related legal regulations and by following the procedural rules therein. Our position is that this examination is a fundamental condition of enforcing the right of the child to special care. The co-operation between the parent and the expert committee can help the development and the catching up of the student in an effective way.
| A parent turned us with a complaint that based on the proposal of the committee, she had enrolled her child with dyslexia at an institution that failed to gain her trust, and requested our help in finding another school. We informed her that the expert committee could help her in finding another school, and if she disagreed with the conclusions of the expert committee, she could refuse to sign the professional proposal or could initiate its supervision. If she did so, the proposal could not be implemented, and the preceding professional opinion would remain in effect until a decision is passed as a result of the remedy procedure. If she already signed the expert opinion as parent, she was required to enrol her child at the institution indicated in the proposal. If she wished to change schools within the same school type, she needed to inform the competent expert and rehabilitation committee in charge in writing, pursuant to Paragraph (5) of Article 14 of Decree 14/1994. (VI. 24.) MKM of the Minister of Education and Culture on Education Obligations and Pedagogical Support Service. The committee would modify the section of the expert opinion concerning the assigned school accordingly. If she wished to change school type, it involved the repeated investigation of her child, which could be initiated by the parent at any time. (K-OJOG-404/2003.)
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Pursuant to Paragraph (5) of Article 15 of Decree 11/1994. (VI. 8.) MKM of the Minister of Education and Culture, upon reaching school age the kindergarten can propose in connection with the maturity level of the child that - in order to determine whether the child needs special school education and whether the child has reached the maturity level necessary to enter school - the child is subjected to an expert and rehabilitation committee examination or that the parent takes the child to the parental guidance service to determine whether the child has reaching the maturity level necessary to enter school.
| A grandparent filed a complaint that based on a school maturity investigation, the expert committee suggested his/her grandchild to stay in the kindergarten and receive intensive speech therapy for one more year. We informed the grandparent that the parents were entitled to initiate a procedure of the town clerk of the settlement to change the content of the professional opinion. (K-OJOG-324/2003.)
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The help of the expert committee is partly of special education nature, partly information assistance. The committee possesses much information that helps the parent in regaining independence in decision making to a certain extent. Informing the parents about irregularities influencing learning ability, development possibilities and available schools are tasks of the expert committee.
In many letters the parents inform us that they do not find a suitable institution for their child. One of the most important roles of the expert committees is assisting the parent in finding the suitable kindergarten or school. Due to the information provision directions of the legal regulation, the expert committees have accurate information about the training and education institutions operating in their field.
The clerk and principal clerk of the local authority maintaining a public education institution is required to inform the competent expert and rehabilitation committee continuously about the institutions which are suitable for providing special care to handicapped children and pupils. Based on the received data, the committee prepares a registry about the institutions that participate in the special care of the child (pupil), and informs the parent appearing at the examination about the possibilities that allow his/her child to comply with his/her compulsory school attendance or compulsory training obligations. The appointed educational institution is chosen by the parent from the institutions proposed by the expert and rehabilitation committee. Under Paragraph (2) of Article 66 of the Public Education Act, the appointed school, if it is not a ('district') school providing compulsory admission, can only refuse the admission of the student due to the absence of vacancies. In this case, the institution providing professional opinion attempts to find another educational institution possessing the human and physical resources necessary for the provision of special care and education. If the placement of the child (pupil) can not be solved in this way either, the institution providing professional opinion determines how the child (pupil) can participate in training and education, and puts the child (pupil) on a waiting list until his/her admission is resolved.
A parent turned to us with the request to find his child with motoric disability a kindergarten he could attend together with healthy children. We informed the parent that in order to provide kindergarten services appropriate for the condition of his child, it was necessary for the expert and rehabilitation committee in charge to examine the child, prepare an expert opinion, and for the parent to select from the list of available institutions the one where his child could be enrolled. We also informed him about which expert committee he should turn to. (K-OJOG-323/2003.)
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In many cases the suitable public education institution was not found because the pupil did not get before the expert and rehabilitation committee examining learning abilities, therefore the parent could not learn about the registry of institutions. These pupils were examined by children's hospitals instead of the committee, and the parents attempted to find a suitable educational institution based on the statements of the hospital's final report. Such activities of the hospital experts are indispensable to the pupils living with special need in many cases, but they can not replace examination by the expert committee.
A parent turned to us with a complaint that teachers started to complain about the behaviour of her child in grade 6, although there had been no problems before that. The principal suggested to the parent that her son spend some time in the afternoon development class to 'come to his senses' in the naughty community. The parent regarded this as punishment and refused the proposal, but due to teacher indications had his child examined in neurology. Here it was identified that behaviour problems are caused by a hyperkinetic condition. The parent requested the procedure of our Office to resolve the conflict arising in the school. We informed the parent that he/she could ensure special care to his/her child if he/she possessed the professional opinion of an expert and rehabilitation committee. (KOJOG-889/2003.)
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There can be many reasons for inadequate communication between the expert committee and the parent. The lack of co-operation resulted in the infringement of the educational rights of the pupil in every case.
It is a frequent complaint that the integrated education of a pupil is provided by foundation schools where the parents should pay high tuition fee. In these situations parents feel a contradiction between their tuition fee payment obligation and the principle of free primary school education. Unfortunately, parents turn to Our office in their final despair, when the family budget can not take the payment of the tuition fee any more. In our view the basic problem is that many people do not know that the local authority is obliged to provide free primary education to children with special educational needs as well.
To enforce the right to special care, the state operates the system of public education Pursuant to the Public Education Act. This means that it provides kindergarten, primary school, vocational school, secondary school, dormitory and pedagogical professional support service through the institution maintenance activities of state organs and local authorities and the provision of services by the state and the local authority. The participation of pupils with special educational needs in education and their dormitory provision in institutions maintained by the state or the local authority is free in every case. Other than the adequate provision of tasks, the local authority has no obligation to support the tuition fee of a foundation school or to assume payment. If the parent chooses an educational institution operated by a foundation, the arising payment obligations fall on him/her.
Foundation education does not necessarily mean tuition fee payment obligation. The local authority may decide to form a public education agreement with the foundation and finance the education of pupils for whom the authority should ensure provision. In this way the use of the service becomes free to the pupils. It is important to emphasise that it may happen that only foundation school can provide services to a pupil but it may not happen that pupils with special educational needs can fulfil their compulsory school attendance only through the payment of tuition fee.
Upon the request of the parents of pupils enrolled at foundation schools, we carried out conciliation between expert committees and local authorities in many cases, examining whether the local authority met its obligations concerning the pupil with special education needs who could be educated in an integrated way. (KOJOG-122/2003., K-OJOG-287/2003., K-OJOG-288/2003., K-OJOG-294/2003., K-OJOG-353/2003.) Our investigations showed that foundation schools were assigned in professional opinions because parents thought that their place of residence had no school maintained by the local authority that could provide the special care to their children. The local authorities involved informed us about the contrary in every case. In these cases the declarations of the expert committees and the local authorities contradicted. The committees stated that the local authorities had not informed them in time about the institutions capable of providing services to the pupils and the local authorities denied this. As the parents had agreed with the assignment of foundation schools, the infringement of education rights could not be established in these cases.
In case the expert committee gives way to the request of the parent and assigns an institution that does not possess the personal and physical assets to provide special care to the student, the result is a grave infringement of the law.
Parents were offended by the fact that upon the pressure of the parents of other pupils, their child was separated from his/her former group and was to be provided service in a lower number of lessons. The parents complained about the initiation of the examination of their child by an expert and the proposal that the education and care of their child continued in another institution. We concluded that from the time the pupil continued his/her studies in a educational institution that did not suit his/her abilities, a condition of infringement of rights arose. The unlawful condition became a burning question to others as well when the rights of others, his classmates and teachers were also endangered. However, it can be assumed that if the pupil had received services suiting his/her condition, this situation would not have arisen. The head of the institution, the expert and rehabilitation committee and the parents were all responsible for the causing of infringement of rights.
As the school did not possess the human and physical resources necessary for the adequate provision of services either at the time of the formation of pupil status or after that, we concluded that both the formation of pupil status and its continuous maintenance were unlawful. Therefore we turned to the head of the institution with the initiative to pay increased attention to ensuring that in the future, in the institution led by him/her, the formation and maintenance of pupil status should be in accordance with the related provisions of legal regulations in every case. We also emphasised that in cases when the competent expert and rehabilitation committee - contrary to the provisions of law - assigns the institution led by him/her to train or educate a pupil whose training and education can not be provided by the institution due to lack of human and physical resources, he/she should indicate the condition of infringement of rights to the committee or the clerk representing the maintainer.
During the investigation we concluded that the expert committee played an active role in the formation of the above infringement of rights, when, upon parental request, referred the pupil to an institution which did not fulfil the conditions defined in legal regulation. The education rights of the pupil were infringed again when - realising the resistance of parents - it did not initiate a state administration procedure to ensure that the parents appeared with their child for a control examination by experts. Based on all these we turned to the chairman of the expert committee with the initiative that in the future he should pay increased attention to ensuring that in the body led by him, the preparation of expert proposals and the assignment of institutions providing training and education services meeting the abilities of the examined pupils is in accordance with the relevant legal provisions in every case. If the parents of the pupils examined by the committee do not show co-operation with the committee and thus impede their children in receiving education and training services from an institution that meets their abilities, he should initiate a state administration procedure in the interest of the pupil in accordance with Section b) of Article 18 of Decree 14/1994. (VI. 24.) MKM on Education Obligation and Pedagogic Professional Services. The parties involved accepted our initiatives. (K-OJOG-293/2003.)
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It can be seen from the above case that the strictness of the provisions of law related to the ensuring of rights to special care is not autotelic. The majority of parents do not possess the expertise to judge which for of education or training serves the interest of their child best. This task is transferred into the sphere of competence of expert and rehabilitation committees under the law, and it prescribes the obligation to initiate state administration procedure in the case of the lack of parental co-operation exactly to guarantee the enforcement of the rights of pupils.
To take the measures necessary to protect the rights of their children, parents should be aware of the provisions of law, the special rights and obligations and the procedures needed to enforce them. Every body and person possessing public education tasks - including our Office - should participate in providing information to parents.
In our opinion, the right to special care is not only a set of rights to certain form of provision specified in the expert opinion, but also includes the right to appropriate conditions - such as information - necessary to enforce these rights.
A pupil who was identified as hyperactive by a specialist was excluded from the class community because of her abnormal behaviour. The other parents in concern submitted an open letter to the clerk and the principal to remove the student from the class. The parent of the pupil turned to the clerk and then to the mayor to receive information about the local primary schools providing special education. This information was not received by the parent despite several requests in writing, so the parent initiated a procedure with us to conclude whether the local authority fulfilled the tasks related to pupils with special educational needs under to the provisions of law. Concerning the case, the mayor stated that the pupil in concern was not entitled to special care because it was not the expert and rehabilitation committee examining learning abilities that identified hyperactivity. The mayor also informed our Office that the local authority provided the suggested service to everybody who justified their right adequately.
We concluded that the right of the pupil to special care included in Paragraph (1) of Article 30 of the Public Education Act was infringed, because both the clerk and the mayor neglected to inform the parents about the necessary information to establish the right to special care and the necessity of an expert committee examination. Our initiative was accepted by the local authority. In the meantime the parents had already found the pupil a school in another town, and the local authority paid compensation to the family. (K-OJOG-359/2003.)
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The questions and complaints about the education requirements of the pupils with special education needs who can be integrated into education form a separate group of cases. A frequent question is whether the decision about this is an obligation or a possibility to the head of the institution. We experienced in many cases that concerning the rights and obligations related to the different educational requirements, both the pupils and the teachers teaching them were uninformed. There were cases when the teacher and the pupil agreed in the application of special requirements and requested information about its lawful solution from our Office. (K-OJOG-253/2003.)
The Public Education Act ensures that pupils with special educational needs who can be integrated into education have their knowledge assessed in accordance with their abilities through the system of exemptions from the compulsory lesson activities and exemptions from certain subjects or subject parts. The determination of differences in subject requirements is within sphere of authority of the principal. The Public Education Act formed two different legal institutions in this matter regarding the sphere of authority of the principal.
One of the possibilities that is not exclusively for pupils with special educational needs is exemption from the participation in compulsory lesson activities. It should be requested from the principal by the pupil. In this question the principal can judge whether it is justified by the personal abilities, the handicap and the special condition of the pupil. The pupils exempted from participation in compulsory lesson activities give account of their knowledge at the time determined by the principal and in the way determined by the teaching staff.
The other possibility is exemption from evaluation and grading in certain subjects and subject parts. This is also decided by the head of the educational institution, but unlike in the previous case he/she possesses no scope of judgement. The Public Education Act provides that special care should be provided to children with special needs in accordance with the expert opinion of the expert and rehabilitation committees. Therefore the principal should pass its decision in accordance with the content of the expert opinion.
A pupil turned to us with the question whether the school could request the acquirement of the opinion of the expert committee concerning exemption, if previously he had received exemptions based on the opinion of an examination carried out by a foundation. We informed her that the head of the institution was only required to exempt her from tests and grading in certain subjects and subject parts based on an expert opinion. (K-OJOG-834/2003.)
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It is a frequent question how the students can take advantage of the allowances gained during their studies in the secondary school-leaving examination. Under Paragraph (9) of Article 30 of the Public Education Act in the secondary school-leaving examination longer preparation period should be provided to students with special educational needs, in the written examinations the application of the accessories (typewriter, computer etc.) used during their school studies should be made possible, or if it is necessary, written examination should be replaced by oral examination or oral examination by written one. (K-OJOG-338/2003.)
Many questions arrive to our Office concerning whether pupils whose learning difficulties were noticed but not identified previously can receive allowances. The parent may request the examination by the expert committee at any time. But in the case the aim of the examination is to exempt the student from evaluation and grading, Paragraph (3) of Article 12 of Decree 14/1994. (VI. 24.) MKM contains the following requirements. The examination may start any time when needed until 31 January in the first six grades of school education or until 31 March of the school year in which the pupil started to study the given subject. Outside this period the declaration of the principal concerned about the necessity of examination should be attached. The principal obtains the opinion of the class teacher of the pupil and the teacher teaching the given subject for his/her decision. In the absence of the agreement of the principal the chairman of the expert and rehabilitation committee or the member of the expert and rehabilitation committee appointed by him/her decides - after the hearing of the pupil - about the necessity of the examination or the refusal of the request. The decision should be made in writing. If the parent disagrees with its content, he/she may initiate state administration procedure to change the decision at the clerk in charge at the permanent residence or in its absence the temporary residence of the child. If the expert committee concludes the right of the pupil to allowances, it may bear importance in the final examination. This will be discussed in detail in the chapter concerning secondary school-leaving examination.
Based on our experiences gained during investigations and the indications arriving to us, we concluded that in many cases the right of the pupils to special care can not be enforced due to the lack of information. Neither the pupils with special education needs themselves nor the persons and organs fulfilling relevant public education tasks possessed adequate legal knowledge to enforce the rights specified in legal regulations. In many cases we found that even the members of the expert committees playing a key role in the provision of special care did not know the provisions of law related to their procedures and obligations. Regarding professional opinions they often fail to apply the regulations related to their compulsory content elements, which causes considerable difficulties in the work of teachers taking care of the pupils. In our judgement, the uncovered errors and shortcomings can be remedied through improving awareness of legal provisions among educational participants.
In order to achieve this, our office proposes the compilation and publishing of a handbook in 2004 that will be available to a wide range of the participants of education. The book will contain the information whose knowledge is regarded necessary to enforce the rights and obligations arising from special education needs. Content
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