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

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 30 July 2020
• Neutral Citation: [2020] IEHC 406
• Court: High Court
• Docket Number: [Record No. 1025/2018 JR]

BETWEEN

CM (A MINOR) (SUING BY HIS MOTHER AND NEXT FRIEND SM)

APPLICANT

AND

THE HEALTH SERVICE EXECUTIVE

RESPONDENT

[2020] IEHC 406

Barr J.

[Record No. 1025/2018 JR]

THE HIGH COURT

JUDICIAL REVIEW

Statutory duties – Disability Act 2005 – Assessment of needs – Applicant seeking reliefs by way of judicial review – Whether the applicant was prohibited from seeking reliefs by way of judicial review due to the existence of a statutory remedy provided under s. 14 of the Disability Act 2005

Facts: The applicant alleged that the respondent, the Health Service Executive, was either failing to implement its statutory duties under the Disability Act 2005 concerning the assessment of needs, or in the alternative, was purporting to carry out its duties in a way that was defective and was therefore not in compliance with the provisions of the 2005 Act. At the hearing of the action, five broad issues were identified as arising for determination: (a)(i) whether the applicant was prohibited from seeking the reliefs by way of judicial review which he sought in these proceedings, due to the existence of a statutory remedy provided under s. 14 of the 2005 Act; (a)(ii) whether the remedy provided under the 2005 Act was an effective remedy; (b) whether, in dealing with assessment of needs on a regional basis, the respondent was in breach of its statutory obligations to deal with all such applications in strict chronological order; (c) whether s. 8(3) of the 2005 Act requires the assessment officer, once he or she is of the opinion that there may be a need for an education service to be provided to an applicant, to request the National Council for Special Education to nominate a person with appropriate expertise to assist in carrying out the assessment, or whether the assessment officer is confined to making such referrals pursuant to s. 8(9) of the 2005 Act, as maintained by the respondent; (d) whether the respondent was in breach of its statutory obligations by failing to furnish the Minister for Health with reports as directed by s. 13 of the 2005 Act; (e)(i) whether the liaison officer is obliged to give reasons in the service statement, when there is either delay or the non-provision of services to the applicant; and (e)(ii) whether it is permissible for the liaison officer in the service statement to make an onward referral to another assessment body.

Held by the High Court (Barr J) that: (a)(i) the existence of the statutory complaints procedure provided for under s. 14 of the 2005 Act was not a bar to the bringing of the judicial review proceedings by the applicant; (a)(ii) the complaints procedure established by the 2005 Act constitutes a reasonable and efficient means of dealing with the majority of complaints that are likely to arise in connection with an assessment of needs, or a service statement; (b) it refused to make a declaration that the respondent was acting in breach of its statutory duties in processing applications for assessment of need on a chronological basis but within each regional area; (c) the sole statutory referral pathway for children provided for under the 2005 Act is pursuant to s. 8(9) of the Act; (d) the respondent had accepted that there were no s. 13 reports produced after 2014 and that was in clear breach of the duty placed upon the respondent by s. 13(2) of the 2005 Act; (e)(i) the content of the service statement must comply with the provisions of regulation 18 of the Disability (Assessment of need, Service Statements and Redress) Regulations 2007 (S.I. 263/2007); and (e)(ii) it did not see that there was anything wrong in the service statement referring to an onward referral to another body, which in connection with the provision of services by it, would carry out a further assessment for their own purposes.

Barr J held that the court would refuse all of the reliefs sought by the applicant, save for a declaration, in relation to the failure to provide the s. 13 reports, that the respondent had been in breach of its statutory duty in respect of the years 2015 to 2019 inclusive.

Reliefs refused in part.

JUDGMENT of Mr. Justice Barr delivered electronically on the 30th day of July, 2020

Introduction

1 This case was chosen as a test case due to the fact that the issues arising in it were representative of issues that have arisen in a number of cases in respect of children applying for assessments of needs under the Disability Act, 2005 (hereinafter referred to as “the 2005 Act”). This case was heard along with two other cases, DB (a minor) v. HSE and JO'SS (a minor) v. HSE, which were heard together and were agreed to be determined as test cases.

2 Arising from these cases, five broad issues have arisen for determination. This judgment will deal with these issues in broad terms. The judgment will then apply the broad determinations reached on the issues to the specific issues arising in the case of each of the minor applicants. However, while individual judgments will be delivered in each case, it will be necessary to read all three judgments together to understand the determinations reached by the court on each of the broad issues.

3 By way of overview and put in its simplest terms, these cases concern issues surrounding the operation of the statutory process providing for the assessment of needs of a person found to have a disability and the consequent service statement issued by the respondent, concerning how these health needs will be met for each applicant under the terms of the 2005 Act.

4 The 2005 Act provides a statutory mechanism whereby a person who is found to have a disability within the meaning of the Act, can apply for an assessment of their health and educational needs by an assessment officer. As part of this process, assessments will be carried out of the applicant across a number of disciplines e.g. psychology, physiotherapy, occupational therapy and speech and language therapy. Each of the assessors will furnish a report to the assessment officer setting out what the applicant's health needs are. This is done without regard to the availability of resources, or the capacity of the system to satisfy these needs. When the reports have been obtained from the various assessors, the assessment officer will issue an assessment report. That report will then be furnished to a liaison officer, who within a period of one month, will issue a service statement, which will set out what actual services will be provided to the individual applicant to satisfy the needs set out in the assessment report. However, it is important to note that the service statement is based upon what resources and services are actually available to cater for the particular applicant's needs in their own locality. In short, the service statement sets out what services (if any) the applicant will get, when he or she will get them and where they will get them.

5 In these three cases, the applicants allege that the respondent is either failing to implement its statutory duties under the 2005 Act concerning the assessment of needs, or in the alternative, is purporting to carry out its duties in a way that is defective and is therefore not in compliance with the provisions of the 2005 Act.

6 One of the issues raised concerns a point of statutory interpretation, which in turn raises the issue of the interaction between the 2005 Act and the provisions of the Education for Persons with Special Needs, Act 2004 (as amended) (hereinafter referred to as “the 2004 Act”). Unfortunately, this issue is further complicated by the fact that while the two Acts are clearly interrelated, certain relevant portions of the 2004 Act have not yet been commenced, which has the effect that certain statutory pathways whereby a disabled child, who may have educational needs, cannot in fact have these needs assessed by the National Council for Special Education under the 2004 Act, because the relevant sections of the 2004 Act have not yet been commenced. This aspect will be set out in detail later in the judgment.

7 It is also relevant to note that while the 2005 Act deals with a very wide range of issues relating to disability within the community, the provisions of the Act dealing with assessments of needs have only been commenced in respect of applicants who are under five years of age.

Overview of the issues arising

8 At the hearing of these actions, five broad issues were identified as arising for determination. The following are those issues:

(a) The Alternative Remedy Issue – (i) whether the applicants are prohibited from seeking the reliefs by way of judicial review which they seek in these proceedings, due to the existence of a statutory remedy provided under s. 14 of the 2005 Act; (ii) whether the remedy provided under the 2005 Act is an effective remedy.

(b) The “Geographical Lottery” Issue – whether, in dealing with assessment of needs on a regional basis, the respondent is in breach of its statutory obligations to deal with all such applications in strict chronological order.

(c) The s.8(3) Referrals Issue – whether s.8(3) of the 2005 Act requires the assessment officer, once he or she is of the opinion that there may be a need for an education service to be provided to an applicant, to request the National Council for Special Education (hereinafter referred to as “the Council”) to nominate a person with appropriate expertise to assist in carrying out the assessment, or whether the assessment officer is confined to making such referrals pursuant to s.8(9) of the 2005 Act, as maintained by the respondent.

(d) Section 13 Reports – whether the respondent is in breach of its statutory obligations by failing to furnish the Minister for Health with reports as directed by s.13 of the 2005 Act.

(e) The Service Statements Issue – (i) whether the liaison officer is obliged to give reasons in the service statement, when there is either delay or the non-provision of...