Special education schools take legal challenge over student admissions circular

A number of special education schools have been allowed to bring a legal challenge against the Department of Education over a policy circular that they argue amounts to taking management of student admissions out of their professional discretion.

At the High Court on Monday, Judge Mary Rose Gearty granted lawyers for the schools to take their challenge against the department, the Attorney General, Ireland and the National Council for Special Education (NCSE).

The High Court cases have been taken by the boards of management of 11 schools, with two further schools granted permission by the judge to be joined in the action.

The applicants are management boards whose existence are established under the Education Act 1998, for schools that cater for pupils with special needs, involving a specified level of learning disability to be confirmed by the schools.

Counsel Feichín McDonagh and barrister Brendan Hennessy, instructed by Millett & Matthews LLP, successfully applied to take the legal challenge, arguing that the department acted outside of its powers in issuing circulars directing that a NCSE letter of assessment must now accompany applications as a prerequisite to entry to the schools. It is alleged this circular removes the schools’ legal discretion regarding enrolment.

The schools are seeking to quash two circulars from the department dated May 2025 and July 2026, arguing that they are not legally binding.

In submissions to the court, the lawyers submit the department’s circulars amount to a contradiction of the terms of admissions policy established by the 1998 Act, which confers the discretion of the schools’ assessment professionals regarding all admissions.

Admission terms, the lawyers argue, are to be determined by the boards of management, run in conjunction with school patrons and could not be determined by the department or by the NCSE under the Act.

“There is no provision in legislation for the respondents to take over the admissions decision-making in a special school by insisting that all successful applicants for a place will have first obtained from the NCSE a ‘Letter of Eligibility’”, it is submitted.

It is further submitted that these new provisions for admissions into a special school involve “a radical and significant change”, which the applicants say is “unlawful” under the Act.

“The NCSE now decides whether a special school should admit the child to that school.

“The school has no longer any substantive role in the process and no discretion,” it is submitted.

McDonagh said the circular implied that there was “no second opinion” in the matter but that “it is the only option” if the circular went unchallenged by the schools.

The judge said she considered the action taken as “arguable” and granted permission for the challenge.

The schools, through their boards of management, listed as taking the cases are: Scoil Eoin Special School, Armagh Road, Crumlin, Dublin 12; St Mark’s Special School, Station Road, Piercetown, Newbridge, Co Kildare; St Laserian’s Special School, Old Dublin Road, Strawhall, Carlow; Red Door Special School, Monkstown Grove, Monkstown, Dublin; St Joseph’s Special School, Parnell Street, Waterford; St Bernadette’s Special School, College Farm Road, Sallaghagrane, Letterkenny, Co Donegal; St Ita’s and St Joseph’s School, Balloonagh, Tralee, Co Kerry; St Michael’s House Special School Skerries, Co Dublin; St Anne’s Special School, Lifford, Ennis, Co Clare; Our Lady of Fatima Special School, Carrigeen Street, Townparks, Co Wexford; and St John’s Special School, Youghal Road, Dungarvan, Co Waterford.