G (A Minor Suing by her Father and Next Friend SG) v Health Service Executive

• Jurisdiction: Ireland
• Judge: Ms Justice Ní Raifeartaigh
• Judgment Date: 01 April 2021
• Neutral Citation: [2021] IECA 101
• Docket Number: Appeal Record No.: 2020/155
• Court: Court of Appeal (Ireland)
• Date: 01 April 2021

Between/

G (A Minor Suing by her Father and Next Friend SG)

Appellants

and

Health Service Executive

Respondent

[2021] IECA 101

Costello J.

Ní Raifeartaigh J.

Pilkington J.

Appeal Record No.: 2020/155

THE COURT OF APPEAL

Case stated – Service statement – Disability Act 2005 s. 11(2) – Circuit Court Judge posing a question to the Court of Appeal – 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 2005 Act to a service statement?

Facts: The respondent, the Health Service Executive (the HSE), on foot of a finding that the appellant child did not have a disability, did not issue a service statement. The HSE contended that the requirement to issue a service statement arises only on foot of a finding that a child has a disability. The appellant contended that irrespective of that finding, the HSE was obliged to prepare a service statement on foot of the identification of health needs and health services in the assessment report: s. 11(2) of the Disability Act 2005 and regulations made thereunder (SI No. 263/2007 – Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007). The matter came before the Circuit Court on foot of the appellant’s motion to enforce the recommendation. The Circuit Court (Judge Linnane) posed a question to the Court of Appeal. The question posed by the case stated, dated 28th February 2020, 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?”

Held by Ní Raifeartaigh J that the answer to the question posed by the case stated must be in the negative. She found that if one read s. 11(2) as a free-standing provision without reference to the rest of the Act, one might reach the conclusion that any child who has been assessed as requiring health services and/or education services is entitled to a service statement, with all the consequences that this entitlement entails. However, she did not think that s. 11(2) could be read as if it were a free-standing provision and terms such as “assessment report” or “determination” were not already used in earlier sections of the Act.

Ní Raifeartaigh J held that with regard to the costs of the application, her provisional view was that there should be no order as to costs as it appeared from the submissions that both parties requested the case stated, the matter was undoubtedly of systemic importance and significant public interest, the parties’ conduct of the case was excellent and efficient, and it was reasonable of the appellant to raise the issue, by reason of the wording of s. 11(2).

Appeal dismissed.

JUDGMENT ofMs Justice Ní Raifeartaighdelivered on the 1st day of April, 2021

Introduction

1 This is a case stated dated 28 February 2020 from the Circuit Court (Her Honour Judge Linnane) to this Court. The issue raised is of systemic importance and the question posed by the case stated is 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?”

2 The answer to the question posed lies primarily in the meaning of s. 11(2) of the Disability Act 2005, which deals with a document known as a “service statement”. The significance of an entitlement to a service statement is that it is accompanied by an entitlement to avail of the complaints and enforcement machinery within the same Act. A service statement is a document created following an assessment of a child's needs and sets out the health services to be provided and a timeframe for provision of those services. Where those timeframes are breached, the Act provides for an elaborate statutory complaints-and-redress process and ultimately judicial enforcement. This right of personal enforcement is a significant departure from the general scheme for delivery of health services in Ireland which is not provided for in the Health Act 2004. The question is whether this right, which arises under the 2005 Act, is available only to children who have been assessed to have needs arising out of a disability or whether it applies more generally to children with needs who have not been diagnosed as having a disability. The question which arises is one of statutory construction.

The Agreed Facts

3 The referring judge very helpfully set out the agreed facts comprehensively, as follows:

• “1. The Disability Act 2005 enacts a statutory process for the assessment of needs of children who are suspected of having a disability. This consists, inter alia, of preparation of an assessment report (a report of whether a child has a disability and a resource – blind assessment of the needs engendered by the disability), and a “service statement” setting out the services that will actually be provided to that child having regard, inter alia, to questions such as “practicability”, and budgetary constraints.

• 2. In the present case, the relevant assessment report (completed outside the statutory timeframe, following the making of a complaint to a statutory complaint officer) assessed at the second applicant (“the child”) did not have a disability but nevertheless identified certain needs and services as follows:

  ‘Although [the child] does not meet the definition of disability under the Act, certain needs have been identified by the assessment process (see attached reports). The file will be referred to local services as appropriate.

  List of services to which referral will be made:

  While [the child] does not meet the definition of disability, she requires the following interventions at primary care level:

  • (a) Primary Care Psychology to support her developing ability to regulate her emotions;

  • (b) Primary Care Speech and Language Therapy to support her on-going play development, pragmatic language skills and monitor fluency as recommended in her AoN SLT report;

  • (c) Primary Care Occupational Therapy to further investigate her sensory processing difficulties as recommended in her AoN Occupational Therapy report.’

• 3. In upholding the applicant's complaint, the Statutory Complaints Officer made two recommendations (regarding psychology and provision of an assessment report) which are not in controversy. The difficulty arises in respect of her recommendation as to the provision of a service statement (“the recommendation”):–

  (iii) 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.

• 4. The HSE has not prepared a service statement for the child, and has indicated that it does not intend to do so. The parties disagree on the question of “entitlement”, as set (sic) under the heading overleaf.

• 5. Insofar as they are relevant, the following dates apply:-

  • (a) The application for assessment of needs was received on 4 October 2017, and so an assessment report should have issued on or before 4 April 2018.

  • (b) The applicants submitted a statutory complaint on 13 December 2018 that the Statutory deadline had been breached.

  • (c) The complaint officer's report issued on 10 January 2019.

  • (d) The applicants invoked the Disability Act 2005's redress mechanism to compel the HSE to comply with the Recommendation i.e. to produce a service statement), by way of notice of motion made returnable for 14 October 2019 and adjourned to 5 November 2019 and 28 January 2020 in order for the Circuit Court to be apprised of the progression of the Disability Act test cases in the judicial review list.

  • (e) On the latter date, the Circuit Court agreed to state this case.

  Dispute between the parties

• 6. On foot of the finding that the child does not have a disability, the HSE did not issue a service statement. The HSE contends that the requirement to issue a service statement arises only on foot of a finding that a child has a disability.

• 7. The applicants contend that irrespective of that finding, the HSE was obliged to prepare a service statement on foot of the identification of health needs and health services in the assessment report: Section 11(2) of the Disability Act 2005 and regulations made thereunder. (SI No. 263/2007 – Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007).

• 8. The matter came before the Circuit Court on foot of the applicants' motion to enforce the recommendation.”

4 in the opening paragraph of this judgment.

Relevant Legislation

5 The long title to the Disability Act 2005 says 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 reason of 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...