How are the hours of support and what is the criterion by which they are subsequently prepared?
There is a procedure for the assignment by the USR executive and finally, who has the authority to determine if a child is actually entitled to it?
These are very particular issues, which over the years have given rise to doubts, difficulties and numerous clashes, even in the courts, between parents and school leaders. To meet the numerous requests, let’s try to explain it in order in this article, indicating the procedure, number of hours and methods of assignment. The number of support hours is determined on the basis of the proposal of the Operational Working Group (GLO), a team with specific functions specially set up within each complex. In carrying out their duties, the GLO it quantifies the hours on the basis of the individual disabled pupil present in the school; subsequently, the manager will have to add up the number of hours to request the official assignment to the USR. The work put in place since Operational Working Group takes on the role of real proposal to be delivered to the head teacher by the end of June, ie within the deadline. This proposal, among other things, must necessarily contain the hours to be assigned for the following academic year.
The crux of the debate focuses precisely on the role of Operational Working Group and on the weight of their proposal: one wonders, first of all, who has to decide the number of hours to guarantee to each pupil with certification of disability and, secondly, if the proposal of the GLO whether or not it is binding on managers. The jurisprudence intervened on the question with one sentence of the Council of State of 23 March 2017, which was followed by another more recent ruling, issued in October 2019 by the Supreme Court of Cassation which finally clarified any doubts, giving the correct interpretation of the law. With the pronunciation of 2019, having become consolidated jurisprudence, the Supreme Court has in fact reiterated the arguments of Council of State present in the 2017 ruling. Considerations that, together with the law number 104become the reference legislation for these issues.
The rulings of the Council of State and the Court of Cassation: school vs families
In the first case brought to the attention of the State Council, the GLO of a kindergarten had proposed a number of hours of teaching support to be assigned to a single pupil with proven serious disability. The quantity of hours entirely covered the school hours and this represented the breaking point with the school administration, that he had granted, however, only a part. The reason given by the manager had as object the limitations on public spending that the law imposed on them in these cases. In practice, the clash had two protagonists: the Operational Working Group which recognized the need to arrange many hours of support and the school managers, who considered the expenditure to be excessive compared to the regulatory provisions. Following the publication of the sentence, the school appealed and obtained a revolutionary ruling that it has become the prevailing jurisprudential orientation, also followed later. According to State Council, in fact, the position of pupils affected by disabilities must prevail over the economic aspect, as claimed by the Constitutional Court in judgment no. 80 of 2010 in which it was specified that “a greater level of disability must be matched by a greater degree of assistance “. Finally a ruling that placed the interest of the minor at the center over the financial-organizational one of the institution, a door wide open to the numerous requests for support claimed by parents in each region. Specifically, the judge reiterated in the sentence that the body competent to assess the concrete needs of pupils with disabilities is exclusively the GLO, since it is made up of both school staff and professionals with specific medical-psychiatric skills, whose judgment is unfailing. Furthermore, the Individualized Education Plan provided with the law 104 of 1992 subjects the school administration to the obligation to guarantee support for the number of hours that has been programmed. In this way he completely eliminated his discretion regarding the reduction of the number of hours due to the resources available to the school. In practical terms, this means that the GLO is responsible for deciding how many hours of support should be set up for the following year based on the number of disabled people present in the classrooms and the level of severity they present.
Compliance with law 104/92 in light of the new jurisprudential orientation
The jurisprudential orientation we have just described must be read and applied in conjunction with the law 104 of 1992, with specific regard to paragraph 1 of art. 3 which distinguishes two different conditions, handicap and serious handicap. In the first case, the person has a psychic, physical or sensorial impairment that causes learning, integration and relationship problems, with difficulty in working and therefore with the risk of marginalization. In this case, the school is required to allocate to the pupil a quarter of the time required by law for a support teacher: 6 and a quarter hours for kindergarten, 5 and a half hours for primary and 4 and a half hours for secondary school. Reading the number of hours available, it is clear that it is the same law that precisely indicates the number of hours that can be made available for each pupil and goes beyond the limitations imposed by the budget set by the Ministry of Education. In any case, law 104 must also be applied considering the specific case, since disability is a very particular world in which it is not possible to generalize or make too anticipated predictions. Continuing our discussion, to art. 3 paragraph 3 of law 104 definition of severe handicap, arguing that the person with a single or multiple handicap such as to have reduced his or her personal autonomy, assessed on the basis of age, falls into this case. Minorization that requires continuous, global and permanent assistance by the institutions. First, we specify that the assessment of the severity or otherwise of the disability cannot be assessed by the school, which does not have the medical-scientific skills, but by a qualified Medical Commission, as expected from article 5 of Legislative Decree 66. The decision of the commission, of course, will have to be based on precise scientific parameters and be based on the law. If that happens, it applies art. 3 paragraph 3 of law 104 which provides three different benefits:
- access to coverage of full school timewith support teachers and with specific assistance services provided by local authorities
- contributions for the purchase of aids and tools to promote autonomy
- concession for parents regarding working hours.
Conclusions: the school’s progress in welcoming pupils with severe disabilities
Having a disabled child involves a heavy burden on the family of origin, which often does not feel supported by the institutions, both in terms of schooling and health aid. A difficult path that passes through loneliness, discouragement and the bitterness of having to rely only on one’s own strength. In this context, the school can be of great help both for the disabled pupil and learn to relate beyond the family context and for parents, who find valid support to address the criticalities that the condition creates. Knowing that you can rely on precise legislation that indicates the number of hours to refer to, without having to climb the bureaucratic mountains of managers and teachers, has brought great facilitations. Among the most important, that of discourage families from bringing judicial remedies aimed at obtaining what is rightfully theirs, achieving it already at the beginning of the school year. But not only that, from this principle also the direct responsibility of the school administrators who must verify the rigorous application of the internal procedure. In particular, school administrators must ensure that the GLO performs its functions correctly and that it incorporates the necessary social and health professionals, since the power of proposal it holds is based on the legitimacy of a collegial body formed in this way.