Enforcement of the Rights of Students with Special Educational Needs

To those who are engaged in educational activities the limited learning ability of a student is a simple fact which they must take into account during their work. However, it should be kept in mind that for a parent the limited ability of their child is a problem to come to terms with. No parent can be blamed for having difficulties in accepting the 'otherness' of their child, especially when the parent is confronted with it by outsiders: teachers, doctors, or special education teachers. On the other hand, it should be made clear that from the moment of diagnosing special need or other disorder in development the independence of the parent in decision-making ceases in several public education related issues, e.g. free choice of education and teaching institution, choice of private student status. The persons working in public education should strive by all possible means to make the parent accept the limitations on parents' rights and the stipulation of co-operation obligation happen in favour of the child, the student, and not against the parent. Accordingly, our Office acts with extreme and special care in the case of complaints and requests arriving from students with special educational needs and their parents.

As from 2003 the Public Education Act does not use the terms handicapped child, handicapped student, and child/student with other handicaps, but refers to children and students who need services different from the usual in their development as 'children, students with special educational needs'. The Act lists the disabilities and development problems that may form the basis of identifying special educational needs. A child/student 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 disorder, autism, or in the case of suffering from several disorders is multiply disabled, or who, due to problem in his or her psychological development, is permanently and seriously hindered in the process of education and learning (e.g. suffers from dyslexia, dysgraphia, dyscalculia, mutism, abnormal hyperkinetic condition or abnormal activity condition). The list of development problems in the Act is only a set of examples, so special educational needs can be established by uncovering other disorders not listed therein.

Article 30 (1) of the Public Education Act states that children and students with special educational needs have the right to receive pedagogical, special educational or conductive pedagogical provision within the framework of special care, as made necessary by their state, from the time their special needs are diagnosed. Special care shall be provided in the framework of early development and care, kindergarten education, school education and teaching, developmental provision in accordance with the professional opinion of an expert and rehabilitation committee.

The above regulation clarifies the dual role of expert committees. First, the right to a specific provision is established by issuing the professional opinion of the expert committee, which means that without an expert opinion, students cannot receive special services. Second, based on their 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 and student.

The most important aim of the examination is to identify or preclude that the student suffers from some disability and to draw up a proposal concerning the most suitable form of education from the aspect of the development of the student. Besides this, the expert 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 parts of subjects, or private student 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 an expert opinion with legal effect and, in the cases governed by the Public Education Act, binding force on the parent, the student and the institutions can only be issued by the bodies 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.

Examination by an expert is carried out at the request of the parent. We were frequently informed by parents of cases where it was the school that sent the child for examination by the expert committee . Decree 14/1994 Of the Ministry of Culture and Public Education on training obligations and teaching specialist services stresses that the procedure of the expert committee shall be initiated at the request or with the consent of the parent. If in the opinion of the public education institution or the family protection institution defined in a decree it is necessary to refer the child/student to the expert committee for examination, it invites the parent to the institution and by giving the reasons proposes the examination of the child by an expert; at the same time the institution is liable to inform the parent of the possible consequences that can be expected based on the examination results, as well as of the rights of the parent in connection with the examination and its findings. Also in this case the parent must give his or her approval for the procedure to start.

Article 30 (4) of the Public Education Act stipulates an exception when the parent's agreement is not required, namely, in the interest of a child, a notary can oblige parents to take the child to an expert's examination or to have the child enrolled at the appropriate education and teaching institution on the basis of the expert opinion . Parents are confronted with another barrier in connection with the commencement and the execution of the procedure by the expert committee in Article 18 of Decree 14/1994 (VI.24.) of the Ministry of Culture and Public Education, according to which the procedure may be initiated by a family welfare institution if the parent does not agree with the necessity of the expert's examination, or by the expert committee itself if the parent fails to take the child to the expert's examination despite the repeated call to attend, or does not co-operate during the expert's examination, or does not agree with the content of the expert opinion or with the opinion being forwarded, and does not sign the application.

Based on Article 12 (1) of Decree 14/1994 (VI.24.) of the Ministry of Culture and Public Education, a parent may at any time initiate the examination of his or her child by the expert.

In her petition, a parent asked for assistance in connection with the schooling of her child. She informed us that in the spring of 2004 the educational counsellor advised that her child, who at the time had already reached the age of six, should remain in kindergarten education for another year. The head of the kindergarten initiated an examination by the expert and rehabilitation committee in charge of assessing children's ability to learn in order to establish maturity for school, the parent, however, did not agree with the necessity of the examination. We informed the parent that under the Public Education Act a child can be enrolled for a given school year in kindergarten education for the last time in the year in which he or she reaches the age of seven. This option is only available if the child was born after 31 August and the educational counsellor or the expert and rehabilitation committee proposes that he or she remains for another school year in kindergarten education. The educational counsellor or the expert and rehabilitation committee can make such a proposal at the request of the parent and with the consent of the teaching staff of the kindergarten. The educational counsellor or the expert committee shall obtain the consent of the teaching staff prior to the examination of the child/pupil. The cited rule is detailed in Decree 14/1994 Of the Ministry of Culture and Public Education on training obligations and teaching specialist services which states that as from the year in which a child turns seven years of age, if the educational counsellor so proposes, the child can remain in kindergarten education for another school year after 31 August. There is only one exception to this rule: if the child has already been diagnosed as a child with special educational needs by the expert committee, it is the expert committee that decides the question of school maturity. The parent indicated that the head of the institution called on the teacher of her child not to issue a document certifying the child's school maturity for the school year 2005/2006. As stated by the Public Education Act, having reached the age of seven, children shall attend school or receive special education as made necessary by their state. The control examination by the educational counsellor shall decide whether the child is mature for school or should receive special education. As regards the examination of the child by the expert committee, first, the education counsellor did not contact the expert committee, meaning that according to her expert opinion the child does not have special educational needs, second, the parent did not initiate the committee's procedure either, and did not agree with the proposal of the head of the institution. On the whole, we concluded that considering the circumstances, the child is not required to be examined by the expert committee. (K-OJOG-1/2005.)

In arriving at an expert opinion, it is the parent who, based on the proposal of the expert committee, selects the form of education appropriate to the state of his or her child. The selected institution shall be one that disposes of a teaching staff and infrastructure necessary for the education of children with special educational needs. The notary or chief notary of the local government that maintains the public education institution has the obligation to keep the competent expert and rehabilitation committee informed of those institutions that meet the desired requirements. Based on the data received, the committee draws up a list of institutions which provide special care for the child/student and informs the parent at the examination of the possibilities through which his or her child can complete compulsory education or fulfil his or her educational obligation.

We often encountered the problem of the expert committee not being able to find a suitable education institution for the child because the available list of institutions did not contain any. In the event that the list of institutions does not contain any institution that could ensure the type of education the special educational needs of the child demand, pursuant to Article 14 (4) of Decree 14/1994. (VI.24.) of the Ministry of Culture and Public Education the expert and rehabilitation committee shall send its professional opinion to the mayor who is competent to proceed in the village, town, town of county rank, or the district in Budapest where the domicile, or in the absence thereof, the residence of the child/student is. The mayor shall make arrangements so that the appropriate education and teaching institution is available, and, where necessary, shall request the chief notary of the county concerned to provide for the required special education teacher or other expert from the network of mobile specialists. The mayor shall inform the expert and rehabilitation committee of the measure he has taken within thirty days.

In the event that a foundation school is indicated as the suitable institution in the expert opinion, then the parent is entitled to choose an institution that is not maintained by the local government or a state body . Such institutions, however, can charge fees for enrolment and provision as defined in the Public Education Act. In these cases parents feel that there is a contradiction between their obligation to pay a tuition fee and the right to a primary school education free of charge .

The school designated by the expert committee - unless it is a school with an obligation to admit the child (it is located in the district where the child lives or the parent works) - may only reject the student if there is no place available at the school . In such a case, in accordance with Article 30 (5) of the Public Education Act, the institution giving the expert opinion shall try to find another education and teaching institution which disposes of the staff and infrastructure needed for special education and teaching. In case the placement of the child/student cannot be solved in this way either, the institution giving the expert opinion shall define in what way the child/student can receive education and teaching, and shall put the child/student on a waiting list until he or she is admitted to an education and teaching institution .

In her petition the parent informed us that the expert committee which assessed her child's learning ability proposed the following in its professional opinion: the child should start his first grade of primary school education in the school year 2004/2005 at the school of his residence, in a small size class if possible, and simultaneously he should receive developmental provision. The school informed the parent that as no small size class would start and the school could not ensure developmental provision, it could not admit the child. The head of the institution suggested several options for the parent each of which proved to be unfeasible and at the same time seconded the notion that the child should apply to another primary school in the township. That school, however, rejected the admission application of the child and also the appeal against the decision was in vain. The parent told us that since she was misinformed several times, in September 2004 she accepted in a written declaration that instead of starting his primary school education, her child would stay at home for another year. In April 2005 the parents tried to enrol the child again in the school of residence, where the head of the institution told them again that the school's facilities remained unchanged, and so they should contact the other primary school in the township which last year had already refused to admit the child to the institution. Having done so, the parents were told by the head of the other institution that their child should have already started his studies last year at the school of residence. The expert opinion of 15 April 2005, which was given at the control examination that was due at the time, designated the primary school of residence for the child, which the parent accepted and visited the head of the institution again, now furnished with the new expert opinion, who, as the parent recounted, objected to the child having been examined without his notification and contribution. The head of the institution also mentioned that a number of parents informed him of their intention to take out their children from the school, should the petitioner's child be enrolled. The head of the competent child welfare service convened a meeting to discuss the case and to solve the conflict, but neither the head of the institution, nor the notary turned up at the meeting. We launched a proceeding to investigate the case. At our initiative the head of the institution informed us that as from the school year 2005/2006, the child had been enrolled in the first grade of elementary education at the primary school of his residence, and also that as of the second semester of year 2004/2005 the school had ensured the staff and infrastructure needed for integrated education. (K-OJOG-455/2005.)

If a parent has signed the expert opinion, he or she is required to enrol the child in the institution designated in the opinion. In the event that a parent disagrees with the expert opinion, he or she is not liable to sign it, and as recourse has the option of contacting the competent notary at the residence of the child. If a parent disputes the content of the expert opinion, the expert committee has to notify the notary thereof. The notary will decide on the issue of compulsory education in the framework of an administrative procedure. Our view is that it is an essential problem that in many cases the expert committee itself fails to inform the parent of the possibilities of legal redress, even though this is a compulsory part of the expert opinion. In spite of this, parents not accepting the professional opinion of the expert committee very often fail to use the remedial mechanisms provided by the law, instead, they enrol their child in an institution other than the one designated in the expert opinion. Unfortunately, this is done with the consent of the school admitting the child. On the other hand, it is important to stress that the head of the education and teaching institution named in the expert opinion can start an administrative procedure if the child has not been enrolled in the education and teaching institution designated by the expert committee.

A parent asked for our help because he wanted to enrol his child with special educational needs in the local primary school instead of the institution specified by the expert committee assessing learning ability. The parent refused to accept the expert opinion and contacted the notary who in his decision confirmed the institution proposed by the expert committee, and informed the parent of his further possibilities of legal remedy which the parent didn't resort to, therefore the decision of the notary came into effect. We discussed the case with the notary and the expert committee. We also informed the parent that if he wished to transfer his child to another type of school, he would have to take his child to be re-examined, which, pursuant to Decree 11/1994 (VI.24.) of the Minister of Culture, he can request at any time. Until then, however, the student had to start her studies in the institution designated by the notary in his effective decision taken on the basis of the expert opinion. Based on the information we received from the notary, the local government can assist the parents with transporting their child to school. (K-OJOG-892/2005.)


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