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The Impact on Policy-making of Judicial Decisions Relating to the Rights of People with Disabilities.

The Impact on Policy-making of Judicial Decisions Relating to the Rights of People with Disabilities.

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An essay for the 2011 Undergraduate Awards (Ireland) Competition by Aveen Rafferty.
An essay for the 2011 Undergraduate Awards (Ireland) Competition by Aveen Rafferty.

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Published by: Undergraduate Awards on Aug 31, 2012
Copyright:Attribution Non-commercial


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Public Interest Essay, January 2010.
The Impact on Policy-making of Judicial Decisions Relating to the Rights of People withDisabilities.Civil society worldwide has begun to re-examine the social disadvantageexperienced by disabled people through the prism of equality and non-discriminationlaw. The extension of anti-discrimination law principles to disability in this jurisdiction with the introduction of,
inter alia
, the Employment Equality Act 1998-2004 has been widely welcomed as a milestone in disability policy. Indeed, it would be churlish not to acknowledge the great significance that comes with the acceptance,recognised in law, of disabled people as rights-holders, as subjects in their ownright.
Without a doubt, there has been a sea change in the perception of disability over the years. Therehas been a shift from the medical model perception which relied heavily on the medical profession, to a more social model which sees people with disabilities as “right-holders.” It has been with the help of case law, media attention and change in general social attitude that thischange has been brought about.This essay will focus on how judicial decisions have brought about rights based policies inrelation to education and employment. The reason behind focusing on these two aspects iseducation is seen as “one of the most fundamental of all rights”
and as a “prerequisite to therealisation of many other rights”
and it is therefore self evident that education is stronglyconnected with “the right to work”. There will be a focus on how the disability community have been let down by judicial decisions under these two headings, and how decisions have broughtabout a change for the better.
Olivia Smith, “Side-stepping Equality? Disability Discrimination and ‘Generally Accepted Qualifications’” (2008)15(1) DULJ 279.
Conor O’Mahony, “Constitutionalism and Legislation in Special Educational Needs Law: an Anglo-IrishPerspective” [2008] Public Law 125.
Public Interest Essay, January 2010.
It was during the late 1990s when law relating to special educational needs became an extremelyhigh-profile issue. There was a series of court cases against the state initiated by parentsattempting to obtain improved educational provision for their children who had autism and/or severe and profound learning disabilities. As Gerry Whyte observed, “litigation strategy wasconsciously pursued in an attempt to compel what was perceived as an indifferent politicalsystem to devote more resources to these particular marginalised groups”.
These cases created a journalistic
and academic furore around this issue
especially the decisions made by the HighCourt and Supreme Court in
Sinnott v Minister for Education.
gives three reasons for the arrival of this issue before the courts. The first of which is,during latter half of twentieth century there was dramatic development of appropriate educationalcourses for persons with learning disability and a shift in emphasis away from medical care tosupport systems involving the combined efforts of physicians, psychologists, teachers and other workers. The reasoning behind the initial medical care stance was that traditionally, theDepartment of Health was responsible for the education of children with severe/profound generallearning disabilities, which resulted in the dominant view that education for these children principally consisted of meeting their medical needs.
Sean Griffin and Michael Shevlin,
 Responding to Special Educational Needs, An Irish Perspective
(Gill&MacMillan, 2007), at page 54.
Fintan O’Toole, "With the greatest of respect, your honours, this is a mess.”
 Irish times
, 14 July 2001.
Conor O’Mahony, “The Right to Education and ‘Constitutionally Appropriate’ Provision” (2006) 28 DublinUniversity Law Journal 422.
[2001] 2 IR 545.
Gerry Whyte,
Social Inclusion and the Legal System: Public Interest Law in Ireland 
(Dublin: Institute of PublicAdministration, 2002).
Griffin and Shevlin, note 4, at 55.
Public Interest Essay, January 2010.
The second reason given by Whyte is there was a change in the State's role on the provision of education for all children. Article 42.4 of the Constitution obliges the State to provide for free primary education generally: –  The State shall provide for free primary education and shall endeavour to supplementand give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with dueregard, however, for the rights of parents, especially in the matter of religious andmoral information.The Report of the Commission of Inquiry on Mental Handicap 1965 made recommendations tothe State to discharge its obligation specifically in relation to children with moderate learningdisability by recognising special schools for this group.
Gradually throughout the sixties specialschools for mentally handicapped pupils and also for sensory and physical handicaps becamerecognised.
However, Ireland's education system failed to recognise children with severe and profound learning disabilities, and it was this factor which Whyte gave as a third reason for thisissue being brought before the courts in the 1990s. The 1975 Education for All HandicappedChildren Act (USA) guaranteed all children with a disability, no matter how severe or profound,a right to a free and appropriate public education.
Furthermore, the recommendations of theground-breaking Warnock Report (UK) in 1978 were incorporated into future legislationgoverning special educational provision. This type of legislation simultaneously reflected thereality of increased mainstreaming of children with disabilities and encouraged this process. Itwas in the absence of enabling legislation that Ireland has failed to match internationaldevelopments in the educating of children with severe/profound disabilities and those whoexperienced autism. As Dympna Glendenning has pointed out:
The Development of Education for Children with Special Educational Need (Ireland 
The USA has been seen to be very proactive in protecting persons with disabilities in general as the concept of "reasonable accommodation" originated in the United States in the 1970s and was later used as a template by theIrish legislature in the development of the statutory concepts that would form the foundations for Irish disabilitydiscrimination provision.

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