C.D. [A Minor] v Health Service Executive and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Bolger
• Judgment Date: 15 May 2025
• Neutral Citation: [2025] IEHC 287
• Docket Number: [2024 699 JR]

Between

C.D. (A Minor Suing by His Father and Next Friend J.D.)

Applicant

and

The Health Service Executive and The Minister for Education

Respondents

and

The National Council for Special Education

Notice Party

[2025] IEHC 287

[2024 699 JR]

THE HIGH COURT

Judicial review – Assessment of need – Disability Act 2005 – Applicant seeking an order of certiorari quashing an assessment of need – Whether the assessment of need was not in compliance with the applicant’s entitlements pursuant to the Disability Act 2005

Facts: The applicant, a seven year old child with additional needs (C), applied to the High Court for an order of certiorari quashing the Assessment of Need Report of 15 April 2024 and for an order of mandamus requiring the first respondent, the Health Service Executive (the HSE) to complete C’s Assessment of Need in accordance with the Disability Act 2005 and the Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007. In this judgment Bolger J addressed the following: (a) the statutory obligations of an assessment officer; (b) findings in CD v. HSE and ors [2024] IEHC 11 and steps taken thereafter; (c) the availability of alternative remedies; (d) the application of the second respondent, the Minister for Education, to strike out parts of C’s proceedings and affidavits; (e) what was done to complete the impugned Assessment of Need; (f) the ability of the assessment officer to assess education needs; (g) Regulation 15 of the 2007 Regulations; and (h) Circular 25/2024.

Held by Bolger J that, given the clear shortcomings in completing C’s Assessment of Need, an assessment of C’s educational needs, to be used by an assessment officer in carrying out an Assessment of Need and in setting out their findings and determinations of the matters set out at s. 8(7), had not yet occurred. Bolger J held that the assessment officer incorrectly and unlawfully treated the principal’s s. 8(3) assistance provided in his Report of Education Needs, as a s. 8(2) assessment; it is possible that a s. 8(3) nominee could also be a s. 8(2) assessor, but that did not occur in this case. Insofar as C’s principal was nominated by the notice party, the National Council for Special Education, Bolger J held that this was only to provide assistance in carrying out the assessment of C’s education needs; C’s principal was never nominated or appointed to carry out an assessment of C’s needs and the assessment officer’s apparent belief that the principal’s report was also a s. 8(2) assessment was wrong in fact and in law. Bolger J held that the assessment officer’s primary duty under s. 8 was to conduct an assessment firstly, of the applicant’s education needs and secondly, the education services required to meet those needs, on a resource blind basis; they must then prepare a written report setting out their findings and determinations of the matters specified at s. 8(7) and this did not happen in this case. Bolger J held that the assessment officer had not complied with all of their s. 8 obligations and what they were required to do by s. 8(7); the s. 8(6) report the assessment officer was required to prepare had not yet been prepared. Bolger J held that the Assessment of Need that was prepared for C was not in compliance with his and his parents’ entitlements pursuant to the 2005 Act to an Assessment of Need which determines C’s education needs occasioned to him by his disability and the education services required to meet those needs.

Bolger J granted an order of certiorari quashing the Assessment of Need of 15 April 2024 and an order of mandamus requiring the HSE to complete C’s Assessment of Need report in accordance with the 2005 Act and Regulations made thereunder.

Application granted.

Counsel for the applicant: Feichín McDonagh SC and Brendan Hennessy BL

Counsel for the HSE: David Leahy SC and Hugh McDowell BL

Counsel for the NCSE and the Minister: Tony McGillicuddy SC and Eoin Coffey BL

Judgment of Ms. Justice Bolger on the 15 ^th day of May, 2025

1 . This is an application on behalf of a now seven year old child with additional needs (hereinafter referred to as ‘C’) for an order of certiorari quashing the Assessment of Need Report of 15 April 2024 and for an order of mandamus requiring the HSE to complete C's Assessment of Need in accordance with the Disability Act 2005 (hereinafter referred to as ‘the 2005 Act’) and the Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007 (hereinafter referred to as ‘the Regulations’).

2 . For the reasons set out below, I grant an order of certiorari quashing the impugned Assessment of Need and an order of mandamus directing the HSE to complete C's Assessment of Need in accordance with the Act and with the Regulations.

3 . In this judgment I address the following:

• a. The statutory obligations of an assessment officer.

• b. Findings in CD1 and steps taken thereafter.

• c. The availability of alternative remedies.

• d. The Minister's application to strike out parts of the applicant's proceedings and affidavits.

• e. What was done to complete the impugned Assessment of Need.

• f. The ability of the assessment officer to assess education needs.

• g. Regulation 15 of the Regulations.

• h. Circular 25/2024.

a. The statutory requirements of an assessment

4 . In CD v. HSE and ors [2024] IEHC 11 (‘ CD1’), the 2005 Act was described as:

“… an innovative, far reaching remedial Act which was, inter alia, ‘intended to provide for an assessment of the health and education needs of persons with disabilities’ ( Dunne J., J.N. and T.M. v. J.H. [2023] IESC 9). The Act provides a statutory framework for the assessment of the health and education needs of a person with a disability”.

In A.B. v. HSE [2023] IECA 275, the Court of Appeal held, at para. 108, that the proper approach of a s. 8(7) assessment and assessment report must be construed along with s. 8 in its entirety, having due regard to its function within Part 2, the purpose of the Act and its long title. The long title of the 2005 Act commences with the following:

“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”. (my emphasis)

Thus, the central purpose of the Act is to ensure that the health and education needs occasioned to persons who have disabilities are assessed and services to meet those needs are identified.

5 . The concept of “ assessment” is central to the Act and is given a specific statutory meaning at section 7:

“‘assessment’ means an assessment undertaken or arranged by the Executive 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”.

That definition informs the scope of s. 8, which is the main focus of these proceedings and merits being set out in full:

“8.—(1) The Executive shall authorise such and so many of its employees as it considers appropriate (referred to in this Act as “assessment officers”) to perform the functions conferred on assessment officers by this Part and every person so appointed shall hold office as an assessment officer for such period as the Executive may determine.

(2) An assessment officer shall carry out assessments of applicants or arrange for their carrying out by other employees of the Executive or by other persons with appropriate experience.

(3) Where an assessment officer is of opinion that there may be a need for an education service to be provided to an applicant, he or she shall, as soon as may be, request the Council in writing to nominate a person with appropriate expertise to assist in the carrying out of the assessment under this section in relation to the applicant and the Council shall comply with the request.

(4) An assessment officer shall be independent in the performance of his or her functions.

(5) An assessment under this section shall 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.

(6) Where an assessment officer carries out or arranges for the carrying out of an assessment under this Part, he or she shall prepare a report in writing of the results of the assessment and shall furnish a copy of the report to the applicant, the Executive, and, if appropriate, a person referred to in section 9(2) and the chief executive officer of the Council.

(7) A report under subsection (6) (referred to in this Act as “an assessment report”) shall set out the findings of the assessment officer concerned together with determinations in relation to the following—

(a) whether the applicant has a disability,

(b) in case the determination is that the applicant has a disability—

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

(ii) a statement of the health and education needs (if any) occasioned to the person by the disability,

(iii) a statement of the services considered appropriate by the person or persons referred to in subsection (2) to meet the needs of the applicant and the period of time ideally required by the person or persons for the provision of those services and the order of such provision,

(iv) a statement of the period within which a review of the assessment should be carried out.

(8) (a) An assessment officer may, for the purposes of carrying out an assessment of an applicant under this section, invite the applicant and, if appropriate, a person referred to in section 9(2) to meet with him or her for interview and furnish any documents or things...