Action (not Acts)! - Village Magazine

3 4 September 2016

hen a State enacts legislation that cre-

ates a right for a category of person, it is

acknowledging that society has

excluded or marginalised those people

and is seeking to rectify this. This is why

people with disabilities welcomed the Assisted Deci-

sion-Making Act 2015 last year. It is why, despite some

misgivings, they welcomed the Citizens Information Act

2007, the Disability Act 2005, and the Education of Per-

sons With Special Education Needs Act 2004 in the

years before.

However, the gap between acknowledgement and

action, reﬂected in the failure to fully implement this

body of legislation mocks any such welcome. It is not

enough to bestow symbolic rights nor is it acceptable

to indeﬁnitely delay enforceable rights. If justice

delayed is justice denied, then the delay in implement-

ing rights-based legislation for people with disabilities

must be described as a scandal.

The Assisted Decision-Making Act was enacted in

December 2015. It has not yet been commenced.

Although the Act is ostensibly disability-neutral, it

would create a system of supports for people with dis-

abilities and others to exercise decision-making. The

indications are that the Act will be commenced – par-

tially only - towards the end of 2016,

twelve months after its enactment.

‘Partial’ commencement is not a new

phenomenon in Irish disability law.

The Citizens Information Act was

enacted in 2007. This Act provided for,

among other things, the introduction of a

Personal Advocacy Service, where advo-

cates with a range of statutory powers

would be employed to support persons

with disabilities. The Personal Advocacy

Service was never established. Instead,

in 2011, a ‘National Advocacy’ Service was

created, a limited service that employs

advocates who do not have statutory powers.

The Disability Act disappointed many disability cam-

paigners in 2005 as it was limited in scope and not

‘rights based’. The Act did provide for a right to an

‘assessment of need’, however it did not create a right

to any service to meet that need once it had been

assessed. After a decade of torpor all parts of the act

have now been commenced except the crucial part pro-

viding for that right to an assessment of need. Currently,

only children are entitled to an assessment of need and

even with that there are difﬁculties. Some parts of the

country report waiting times of up to a year for these

assessments.

The Education of Persons with Special Education

Needs Act (EPSEN) provides a comprehensive statutory

framework for education of children with disabilities.

Rightly welcomed as inclusive, the Act proposed a right

to an individual education plan for children with disa-

bilities. The implementation of the Act was to be

staggered, but in 2008 this ground to a halt and was

postponed indeﬁnitely.

Successive governments have merely passed the

buck for failure to implement these laws. In 2015, the

Minister for Education Jan O’Sullivan blamed the previ-

ous government and admitted that the preferred

avenue was now to bring in EPSEN’s provisions on a

non-statutory basis. Most recently, in answering a Dáil

question, Minister for Disability Issues Finian McGrath

blamed decisions made in 2008 for the failure to com-

mence the Disability Act and the EPSEN Act in full.

It is true that exchequer ﬁnances were in a poor state

in 2008. However, this cannot be used to gloss over the

fact that 2008 was a full three years after the enactment

of the Disability Act and four years after the EPSEN Act.

For much of that period the exchequer was ﬂush.

The various Programmes for Government over these

periods paint the picture. In 2007, three key commit-

ments were made to “Complete the roll out of [EPSEN]”,

to provide “a legal right to independent assessment

of need”, and to “implement the Citizens Information

Act”. By 2011, the Government had changed and the

‘Statement of Common Purpose’ committed to pub-

lishing a “plan for the implementation of the EPSEN

Act” with no mention of the Disability Act or the Citi-

zens Information Act.

In the current ‘Programme for Partnership’, there is

a commitment to “consult with stakeholders to see how

best to progress sections of the EPSEN Act” and an

ambition to “improve services ... particularly for early

assessment and intervention for children with special

needs”. Again there is no mention of independent

advocacy.

It seems the rights of persons with disabilities are

simply slipping off the page. Resources were scarce for

much of the past decade but it is simply undeniable that

where there were competing demand for resources, the

rights of persons with disabilities lost out. That seems

to be a part of who we are.

Sarah Lennon is Training and Development Ofﬁcer

with Inclusion Ireland

Action (not Acts)!

Most of our often impressive

disability legislation has simply not

been commenced

by Sarah lennon

There’s money now - so

implement the Assisted

Decision-Making Act 2015,

the Citizens Information

Act 2007, the Disability Act

2005, and the Education

of Persons With Special

Education Needs Act 2004

POlITICS