ELG (a minor suing by her mother and next friend SG) v Health Service Executive (No. 2)

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 11 March 2022
• Neutral Citation: [2022] IESC 14
• Court: Supreme Court
• Docket Number: S:AP:IE:2021:000053 Circuit Court Record No. 2019/5526

In the Matter of Section 16 of the Courts of Justice Act 1947 (As Amended) – A Case Stated from the Circuit Court to the Court of Appeal

Between/

ELG (a minor suing by her mother and next friend SG)

Appellants/Applicants

and

Health Service Executive (No. 2)

Respondent/Respondent

[2022] IESC 14

O'Donnell C.J.

Charleton J.

Baker J.

Woulfe J.

Hogan J.

S:AP:IE:2021:000053

Court of Appeal Record No. 2020/155

Circuit Court Record No. 2019/5526

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Case stated – Statutory interpretation – Disability Act 2005 s. 11(2) – Appellant seeking to receive a service statement under s. 11(2) of the Disability Act 2005 – Whether the appellant was entitled to avail of the rights of personal enforcement under the legislative scheme

Facts: The appellants issued an originating notice of motion in the Circuit Court returnable for 14 October 2019, for orders under s. 22 of the Disability Act 2005 directing/compelling the respondent, the Health Service Executive (HSE), to implement in full the recommendations of a Disability Complaints Officer, made on 10 January 2019. Following the exchange of affidavits and submissions the parties agreed that the issue reduced to whether the minor appellant was entitled to receive a service statement under s. 11(2) of the 2005 Act, and it was that legal question that led the Circuit Court judge to state a case to the Court of Appeal. The question posed by the case stated was as follows: “Where an Assessment Report prepared under the Disability Act 2005 concludes that an applicant has no disability, but nonetheless identifies that the applicant has health needs and requires health services, is that applicant entitled under inter alia s. 11 of the Disability Act 2005 to a service statement?” The question posed in the case stated was answered in the negative ([2021] IECA 101). The Supreme Court granted leave to appeal by determination on 21 July 2021 ([2021] IESCDET 84). The parties agreed that the issue in the appeal was one of statutory interpretation of the 2005 Act and in particular, s. 11(2), and agreed that the Act could be regarded as a remedial social statute. The appellants did not agree that the 2005 Act, and in particular s. 11(2), applies only to those with a disability as defined under the Act, nor did they agree that the minor appellant could be excluded from the provisions of the Act by reason of the assessment that she did not have a disability. The appellants said that they did not challenge the constitutionality of the 2005 Act per se, rather, they wished to argue that the Supreme Court should give a constitutional interpretation to the Act.

Held by Baker J that the contents of an assessment report are identified expressly and in mandatory terms as being those provided in s. 8; further, the word “assessment” does not have a plain meaning but in this context rather bears the more narrow technical meaning applicable to Part 2 of the 2005 Act, namely an assessment to determine in respect of a person with disability the needs of and services to be provided to that person. Baker J held that an “assessment” in that more narrow sense is not to be given meaning divorced from the statutory context, but is to be linked to an assessment of needs and services required by person with disability. Baker J held that the context and language of Part 2 of the 2005 Act clearly limits the word “assessment” to those specific needs and service arising from a disability. Baker J held that if a canon of construction is required then the appropriate one should be expressio unius est exclusio alterius, i.e. that the definition of “assessment” and of “assessment report” excludes the construction for which the appellant contended.

Baker J held that the word “assessment” in s. 11(2) does not bear the wide meaning for which the appellant contended. Baker J agreed with the conclusion of the Court of Appeal that the case stated must be answered in the negative.

Appeal dismissed.

JUDGMENT of Ms. Justice Baker delivered on the 11 ^th day of March, 2022

1 . The Disability Act 2005 (“the Act of 2005”) was enacted to enable provision to be made for the assessment of the health and education needs of persons with disabilities and to provide the means by which those needs are to be met consistent with the resources available to Government. It also provided a statutory appeal and judicial enforcement mechanism for the services identified to meet the needs of persons with disabilities.

2 . The Act of 2005 was innovative and far reaching as it provides a statutory complaints enforcement mechanism, up to judicial enforcement, to remedy failure to provide the services proposed to meet needs, once identified. The right of enforcement is a valuable personal right not found in general within the national health services and was not found in the Health Act 2004.

3 . Section 2 of the Act of 2005 defines “disability” narrowly, and sets what must be seen as a high threshold:

“‘disability’, in relation to a person, means 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”

4 . The question arising in this appeal is whether the minor appellant, ELG, now a 6 year old child, suing by her mother and next friend, SG (“the appellants”) who has been assessed as having health needs falling short of a “disability” within the meaning of the legislation, is nevertheless entitled to avail of the rights of personal enforcement under the legislative scheme.

5 . This appeal centres on the interpretation of the gateway provision that enables access to the statutory enforcement mechanism, the “service statement”, provided for in s. 11(2) of the Act of 2005. A service statement identifies the needs of a person, the health and/or educational services to be provided to meet those needs and the timeframe within which they are to be provided by or on behalf of the HSE (referred to as “the Executive” in the Act of 2005) or an education provider.

The facts of the present appeal

6 . ELG is a 6 year old girl and her mother submitted a request for an assessment of her needs to the HSE on 4 October 2017, based on the belief that ELG may have a disability. There was a delay in the furnishing of an assessment report, required under the Act to be done within three months of request, and a complaint was made to the statutory complaints officer. In upholding the appellants' complaint, the statutory complaints officer recommended that inter alia an assessment of needs should be carried out and “should [the child] be entitled to a service statement, it should be issued in conjunction with the final assessment report no later than 4 March 2019.” That recommendation must be seen as doing no more than fixing the time limits for the completion of the assessment process and follow-up reports, were such to be required.

7 . An assessment of needs was then carried out for ELG, which concluded that she did not have a “disability” within the meaning of the legislation but did identify that she had certain health and education needs and made recommendations as to certain interventions to which referrals should be made, including to primary care psychology, primary care speech and language therapy and primary care occupational therapy. She is now receiving those services and supports and this appeal concerns therefore a general and technical question concerning the operation of the Act which will have no immediate effect on the provision of those services and supports to her.

8 . It is useful to briefly explain here the arguments of the parties: the respondent says that a finding that a person does not have a disability means that he or she is not entitled to avail of the statutory redress mechanisms even where health needs and recommendations regarding suitable interventions are identified in respect of that person, and that the full range of statutory redress and enforcement mechanisms are available only to a person who has been assessed as having a “disability” within the statutory meaning.

9 . The appellants argue that once an assessment of a person identifies health needs and health services then, because of the terms of s. 11(2) of the Act of 2005, that person is entitled to trigger these enforcement mechanisms, and must therefore be provided with the service statement, which is the gateway to the enforcement provisions of the Act.

The statutory framework

10 . The Long Title to the Act was relied on in argument and it provides as follows:

“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, to make further and better provision in respect of the use by those persons of public buildings and their employment in the public service and thereby to facilitate generally access by such persons to certain such services and employment and to promote equality and social inclusion and to provide for related matters.”

11 . The Long Title thus recites that the Act seeks to promote equality, and social and work inclusion for persons with disability, and the Act provides a structure for assessment of disability and the meeting of needs.

12 . As the title and Long Title to the Act recite, it is primarily...