State tells court free education only for children

The State's constitutional obligation to provide free primary education applies only to children up to 18 and does not extend to adults, whether disabled or not, the Supreme Court was told yesterday.

Otherwise there would be major financial and political implications for everyone, it was claimed. The State recognised persons with severe disabilities required education beyond 18 and wished to look after such persons "but not as a matter of constitutional obligation", lawyers for the State added.

It was "unfortunate" these important issues had arisen in the cases of Mr Jamie Sinnott (23), who is autistic, and his mother Kathryn, of Ballinhassig, Co Cork, but they had, and the State was prepared to pay the legal costs of the proceedings, irrespective of the outcome of its appeal against the High Court's decision in favour of the Sinnotts, Mr Eoghan Fitzsimons SC, with Mr James O'Reilly SC, said.

He was opening the State's appeal against a High Court judgment last October where Mr Justice Barr found the State had breached the constitutional rights of Mr Sinnott and Mrs Sinnott in failing to provide adequate education for Mr Sinnott and awarded total damages of more that £270,000.

The judge found the State's obligation to provide free primary education was based on need, not age, and did not stop at 18. Yesterday, Mr Fitzsimons told the seven-judge court the State accepted Mr Sinnott's rights were breached, was not appealing the High Court's findings of fact in his case and would pay the £225,500 damages awarded.

It accepted Mr Sinnott was educable and had not received adequate or appropriate education up to age 22. However, the State was arguing Mr Justice Barr went too far in finding the constitutional right to free primary education was based on need, not age.

In Mrs Kathryn Sinnott's case, the State is not seeking repayment of the £15,000 special damages to her but is appealing the finding that her constitutional rights were breached in the failure to provide adequate education to Mr Sinnott and also against the award of £40,000 general damages to her. It claims Mrs Sinnott has no case and there is no collateral rights for a person who claims to be adversely affected by the breach of another's constitutional rights.

Mr Fitzsimons said the appeal centred on Article 42.4 of the Constitution which states: "The State shall provide for free primary education." Mr Justice Barr found there was nothing in Article 42.4 which supported the State's claim that the right to free primary education stopped at age 18, counsel said.

There was evidence that Mr Sinnott would have a lifelong need for education. The State accepted that but would argue that, after the age of 18, the State had no obligation to provide such education. Mr Fitzsimons argued Article 42.4 made no provision for education for life.

If the Minister conceded there was a constitutional right to adult education, this would be a major step. Where would such rights begin and end? Counsel accepted there was inconsistency in the State's contention that its obligation to provide for free primary education continued to age 18 when primary education ceased for many children from the age of 12 to 14.

The State was setting the figure at 18 because it was "seeking to lean over backwards to afford rights to people like Jamie Sinnott".

In other grounds of appeal, the State claimed the High Court judge, in directing the State to provide education for Mr Sinnott into the future, breached the principle of the separation of powers and was an excessive interference into the field of the legislature.

Mr Justice Barr was effectively making policy in issuing such an injunction, counsel argued.

The High Court was also wrong in the basis on which it awarded damages for breach of Mr Sinnott's constitutional rights, Mr Fitzsimons said.

It would have been sufficient for the judge to declare a breach of constitutional rights in Mr Sinnott's case - which the State accepted - and to give the State an opportunity to remedy the situation. The judge should have trusted the State to put the matter right. The appeal continues today.