C.M. (A Minor) Suing by his Mother and Next Friend SM v Health Service Executive

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 27 October 2021
• Neutral Citation: [2021] IECA 283,[2020] IEHC 406
• Court: Court of Appeal (Ireland)
• Docket Number: Record No.: 2020/221

Between/

C.M. (A Minor) Suing by his Mother and Next Friend SM

Appellant

and

Health Service Executive

Respondent

[2021] IECA 283

Donnelly J.

Ní Raifeartaigh J.

Binchy J.

Record No.: 2020/221

THE COURT OF APPEAL

Statutory interpretation – Disability Act 2005 s. 8 – Assessment of educational needs – Appellant seeking an assessment of his educational needs under s. 8(3) of the Disability Act 2005 – Whether, under the provisions of s. 8(3) of the Disability Act 2005, an assessment officer who is of the opinion that a child may have a need for an education service, must make a request to the National Council for Special Education to nominate an expert to carry out an assessment

Facts: The appellant, a child, sought to determine whether he was entitled to an assessment of his educational needs under s. 8(3) of the Disability Act 2005. The respondent, the Health Service Executive, in turn, submitted that, so far as educational needs are concerned, s. 8(3) only refers to adults and that the specific reference to children in s. 8(9) provides a separate pathway for children to have their educational needs assessed. The High Court (Barr J) held that s. 8(3) does not apply to children. The trial judge noted that this led to the conclusion that there was no statutory pathway for children to have their educational needs assessed by the National Council for Special Education. He noted that while this was “not satisfactory for children who have cognitive disabilities”, parents still had the opportunity to be referred to the Council by going directly to an education service provider. An appeal to the Court of Appeal was taken against those findings of the trial judge. The issue in the appeal was the correct interpretation of s. 8 of the 2005 Act; specifically, whether, under the provisions of s. 8(3), an assessment officer who is of the opinion that a child may have a need for an education service, must make a request to the Council to nominate an expert to carry out an assessment. At the hearing before the Court, counsel for the appellant suggested that one way in which the matter could be resolved was if “applicant” within s. 8(3) was to be understood as including a child applicant. The respondent’s argument was that such a reading was not open to the Court on a proper construction of the relevant sub-sections of the 2005 Act and the Education for Persons with Special Needs Act 2004.

Held by Donnelly J that the High Court finding in favour of the respondent’s submission, that s. 8(3) does not cover children because of the application of the maxim generalia specialibus non derogant, must be overturned because it did not take into account that s. 8(9) in its literal meaning was dealing with a different situation; namely, the post-assessment situation as regards the child’s educational needs which had been identified in the course of the assessment itself.

Donnelly J held that the appeal would be allowed.

Appeal allowed.

JUDGMENT of Ms. Justice Donnelly delivered on the 27th day of October, 2021

Introduction

1 In an ideal world, children with disabilities would be able to have their health and educational needs assessed and be provided with the services to meet those needs in a timely manner. The Oireachtas legislated in 2004, through the Education for Persons with Special Needs Act, 2004 (“the EPSEN Act), for such an ideal world in relation to educational needs assessment and education provision for children with disabilities. As we do not live in such an ideal world, some seventeen years later crucial parts of the EPSEN Act have not been commenced. The Oireachtas legislated in 2005, through the Disability Act, 2005 (“the Disability Act), for the assessment of health needs and, at least in respect of adults, the assessment of educational needs and service provisions. Again, as we do not live in an ideal world, sixteen years after it was enacted the Disability Act has only been commenced in respect of children under the age of 5 years.

2 In respect of health needs, the Disability Act makes provision for, inter alia, the assessment of the health needs of children and adults and the provision of a service statement of what services might actually be available to the adult or child. The Disability Act, if fully commenced, would also apply to an assessment of the educational needs of adults with a disability and the provision of a service statement. This case, a test case for many other children with disabilities, addresses whether the Disability Act provisions regarding assessment of educational needs also apply to children with disabilities. This judgment involves the interpretation of s. 8 of the Disability Act and its interaction with the EPSEN Act.

3 The appellant, a child, seeks to determine whether he is entitled to an assessment of his educational needs under s. 8(3) of the Disability Act. The respondent, the Health Service Executive, in turn, submits that, so far as educational needs are concerned s. 8(3) only refers to adults and that the specific reference to children in s. 8(9) provides a separate pathway for children to have their educational needs assessed. At present, this pathway could be described as a cul de sac as relevant provisions of the EPSEN Act have not been commenced.

4 The specific facts pertaining to the appellant's situation are not entirely relevant to the question of statutory interpretation upon which this appeal turns. However, the facts do provide a context for the important issues at stake for him and for children and their parents similarly situated. In brief, the appellant is a child now seven years of age who presents with Autism Spectrum Disorder according to the reports exhibited. His mother noticed that he was delayed in attaining certain developmental milestones one would expect a child of his age to reach. She decided to apply for an “Assessment of Need” for her son. She claims that the appellant's assessment report compiled under the Disability Act was incomplete as the assessment officer had failed to address the educational needs of the appellant and had failed to refer the question of the appellant's needs to the National Council for Special Education (hereinafter, “the Council”), established by the EPSEN Act. It is accepted that the extent of appellant's disability showed that he had an educational need due to the nature of his disability. The issue is whether the assessment of that need is required to be carried out under the Disability Act or whether his needs can only be assessed under the EPSEN Act, which, as it is not yet commenced, leaves him without recourse to such a statutorily mandated assessment at present.

5 It is important to point out that the appellant accepts that even if his needs are assessed under the Disability Act, he would not have an entitlement to have a service statement in respect of those needs. This is because the Disability Act provisions regarding service statements only apply to adults (s. 11) and the relevant provisions of the EPSEN Act concerning students in school and children have not been commenced (s. 3 and s. 4). On behalf of the appellant, it is submitted that an assessment report is nonetheless still of benefit to him as it may provide for the possibility for his mother to supply, through her own resources if at all possible, the appropriate services to him.

6 I will next set out in general terms the legal framework provided for Disability Act assessments and for the EPSEN Act assessments. I would comment at this stage that in so far as the health needs (and the educational needs of adults) of applicants are concerned, the process set out in the Disability Act is relatively straight forward compared with the assessment processes set out in the EPSEN Act. The interpretation of where and how those Acts interlink is made all the more difficult by the inherent complexity of the EPSEN Act provisions.

The Legal Framework under the EPSEN Act 2004

7 The focus of the EPSEN Act was education. As enacted it covered students (as defined in the Education Act, 1998 as persons in primary or post primary schools) and children (both students and those who are out-of-school). Section 19 of the EPSEN Act established the Council and has been commenced. Under the EPSEN Act as enacted, the Council had a variety of functions. One of these functions is set out in s. 20(1)(b) as follows “in consultation with schools, the [Health Service Executive] and such other persons as the Council considers appropriate to plan and co-ordinate the provision of education and support services to children with special educational needs”. Its functions included ensuring that the progress of students with special educational needs is monitored and that it is reviewed at regular intervals.

8 The Council's functions were more limited with respect to adults in the EPSEN Act, as enacted. Section 20(h) and (i) of the EPSEN Act provided for the following functions:

“(h) to review generally the provision made for adults with disabilities to avail of higher education and adult continuing education, rehabilitation and training and to publish reports on the results of such reviews (which reviews may include recommendations as to the manner in which such provision could be improved);

(i) to advise all educational institutions concerning best practice in respect of the education of adults who have disabilities.”

9 Section 7(3) of the Disability Act, however, enlarged the Council's functions to cater for adults by stating that references in Part 2 to the Council shall be construed as references to the Council with, in addition to the functions conferred by the EPSEN Act, the following functions:-

• “ (a) to assist the Executive in the assessment of adults with disabilities and the preparation of service statements;

• (b) to consult with the Executive, education service providers and such other persons as the...