Y and Another v The Health Service Executive

• Jurisdiction: Ireland
• Judge: Ms Justice Iseult O'Malley
• Judgment Date: 04 June 2025
• Neutral Citation: [2025] IESC 26
• Court: Supreme Court
• Year: 2025
• Docket Number: S:AP:IE:2024:0000065

In the Matter of An Appeal Under Section 20 of the Disability Act 2005

Between/

RY and ZR (A Minor Suing by Her Mother and Next Friend RY)

Appellants/Respondents

and

Disability Appeals Officer

Respondent/Notice Party

and

Health Service Executive

Notice Party/Appellant

[2025] IESC 26

Dunne J.

Charleton J.

O'Malley J.

Hogan J.

Donnelly J.

S:AP:IE:2024:0000065

THE SUPREME COURT

Health services – Assessment of needs – Disability Act 2005 – Appellant appealing against the decision that statutory requirements had not been complied with – Whether the statutory requirements regarding the contents of service statements were breached

Facts: The notice party/appellant, the Health Service Executive (the HSE), appealed to the Supreme Court against a decision of the High Court (Bolger J) delivered on 11 January 2024: [2024] IEHC 8. The central issue in the appeal concerned the obligations of the HSE, under the provisions of the Disability Act 2005, in respect of the process for the assessment of the needs of persons with disability and the subsequent delivery of services to them. The process included an obligation to specify what services will be provided to those persons and when such services will be provided. Bolger J held that the statutory requirements had not been complied with in the case of the second appellant/respondent (ZR), a child who had been assessed as having global developmental delay and autistic spectrum disorder. The trial judge found that the only “service” in respect of which the appellant specified a timeframe for delivery, the development of an Individual Family Service Plan, was not a “clinical service”. Bolger J also held that the reasons given by the respondent/notice party, the appeals officer, for rejecting the complaint made on behalf of ZR were inadequate; that aspect of the decision was not appealed. The appellant saw the judgment of the High Court as giving rise to two issues: (a) whether it is a requirement of the Disability Act 2005 that each health service identified in an assessment report be “specified” in a service statement; and (b) whether the statutory requirements regarding the contents of service statements were breached by identifying development of an Individual Family Service Plan (IFSP) as a “specified” health service.

Held by O’Malley J that, as a matter of statutory interpretation, the answer to the first question must be negative. She held that the 2005 Act very clearly distinguishes between the “resource-blind” assessment and the service statement. She held that there is no basis on which it could be concluded that every service recommended by the assessment report must be included in the service statement, with the only scope for variation being in the time-line for provision. She held that there must be a rational connection between the content of the two documents; a service statement could be the subject of a complaint if the only service specified had no relevance to the needs identified in the assessment. She noted that the High Court ordered the remittal of the complaint of the first appellant/respondent (RY) to the appeals officer on two grounds, one of which had not been appealed; formally, therefore, the matter must go back to the appeal stage. However, O’Malley J noted that the circumstances in which services had been provided to ZR had developed since the commencement of the proceedings and the original service statement had long since been superseded. It seemed likely to O’Malley J that there would have been further reviews since the one that was put before the court. She held that it may be that RY no longer wished to pursue the complaint, but, if she did, the appeals officer should consider the complaint in the light of this judgment.

O’Malley J held that he would dismiss the appeal in the circumstances.

Appeal dismissed.

Judgment of Ms Justice Iseult O'Malley delivered the 4 ^th day of June 2025

Introduction

1 This is an appeal by the Health Service Executive (“the HSE”) against a decision of the High Court delivered on the 11 ^th January 2024 (Bolger J. – see [2024] IEHC 8). The HSE is a notice party in the proceedings. The named respondent, the appeals officer, was separately represented in the High Court but did not participate in the appeal.

2 The central issue in the appeal concerns the obligations of the HSE, under the provisions of the Disability Act 2005 as amended, in respect of the process for the assessment of the needs of persons with disability and the subsequent delivery of services to them. The process includes an obligation to specify what services will be provided to those persons and when such services will be provided. In brief, Bolger J. held that the statutory requirements had not been complied with in the case of Z, a child who has been assessed as having global developmental delay and autistic spectrum disorder. The trial judge found that the only “service” in respect of which the appellant specified a timeframe for delivery, the development of an Individual Family Service Plan, was not a “clinical service”.

3 Bolger J. also held that the reasons given by the appeals officer for rejecting the complaint made on behalf of ZR were inadequate – that aspect of the decision has not been appealed.

The statutory background

4 The Long Title of the Act states in relevant part that it is “an Act to enable provision to be made for the assessment of health and education needs occasioned to persons with disabilities by their disabilities, to enable Ministers of the Government to make provision, consistent with the resources available to them and their obligations in relation to their allocation, for services to meet those needs, to provide for the preparation of plans by the appropriate Ministers of the Government in relation to the provision of certain of those, and certain other services, to provide for appeals by those persons in relation to the non-provision of those services…”

5 “Disability”, in relation to a person, is defined in broad terms in s.2 as meaning “a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment.” For the purposes of Part 2 of the Act (which deals with assessment of needs, service statements and redress, and with which the Court is principally concerned in this case) s.7 further defines a “substantial restriction” as meaning “a restriction which (a) is permanent or likely to be permanent, results in a significant difficulty in communication, learning or mobility or in significantly disordered cognitive processes, and (b) gives rise to the need for services to be provided continually to the person whether or not a child, or if the person is a child, to the need for services to be provided early in life to ameliorate the disability”.

6 The word “service” is defined very broadly in s.2 as meaning “ a service or facility of any kind provided by a public body which is available to or accessible by the public generally or a section of the public”. Without prejudice to the generality of the foregoing, it includes the use of any place or amenity owned, managed or controlled by a public body, the provision of information or an information resource or a scheme or an allowance or other benefit administered by a public body, any cultural or heritage services provided by such a body, and any service provided by a court or other tribunal.

7 For the purposes of Part 2 of the Act, s.7 defines a “health service” as a service (including a personal social service) provided by or on behalf of the HSE.

8 An application for assessment and the provision of services commences with an application by or on behalf of the person. An “assessment”, in this context, means an assessment undertaken or arranged by the HSE to determine, in respect of a person with a disability, the health and education needs (if any) occasioned by the disability and the health services or education services (if any) required to meet those needs.

9 Section 8 provides for the appointment and functions of assessment officers. These persons, who are to be independent in the performance of their functions, may assess applicants themselves or arrange to have assessments carried out by other employees of the HSE or by other persons with appropriate experience. (A separate procedure is prescribed where the officer is of opinion that an education service may be needed.)

10 The HSE is obliged under s.9(5) to cause the assessment to be commenced within three months and to be completed without undue delay. A person may apply for a further assessment if there has been a material change of circumstances, or further information has become available relating to either the personal circumstances of the applicant or to the services available to meet their needs, or a material error has been identified in the original assessment report.

11 Section 8(5) requires the assessment to be carried out “ without regard to the cost of, or the capacity to provide, any service identified in the assessment as being appropriate to meet the needs of the applicant concerned”. This has been described in various judgments as meaning a “gold standard”, “utopian”, “aspirational” or “resource blind” assessment.

12 The assessment officer must prepare a written report. Section 8(7) provides that the contents of the assessment report must set out the findings of the assessment officer together with determinations in relation to a number of matters. The first is whether the applicant has a disability. If so, the officer must provide

• (i) a statement of the nature and extent of the disability,

• (ii) a statement of the health and educational needs (if any) occasioned by the disability,

• (iii) a statement of the services...