Health Service Executive (HSE) v Dykes

• Jurisdiction: Ireland
• Judge: Mr. Justice Michael Hanna
• Judgment Date: 08 December 2009
• Neutral Citation: [2009] IEHC 540
• Docket Number: RECORD NO. 148MCA/2009
• Court: High Court
• Date: 08 December 2009

[2009] IEHC 540

THE HIGH COURT

RECORD NO. 148MCA/2009

Health Service Executive (HSE) v Dykes

[2009] IEHC 540

IN THE MATTER OF SECTION 20 OF THE DISABILITY ACT 2005

AND IN THE MATTER OF SECTION 1(3) AND PART 2 OF THE DISABILITY ACT 2005

AND IN THE MATTER OF THE DISABILITY ACT 2005 (COMMENCEMENT) ORDER 2007 (S.I. NO. 234 OF 2007)

AND IN THE MATTER OF ORDER 84C OF THE RULES OF THE SUPERIOR COURTS 1986 AS AMENDED

BETWEEN:

HEALTH SERVICE EXECUTIVE

Appellant

-And-

TERESA DYKES

Respondent

-And-

ROGER GALLAHUE

Notice Party

RSC O.84C

DISABILITY ACT 2005 S15

DISABILITY ACT 2005 S9(1)

DISABILITY ACT 2005 S20

DISABILITY ACT 2005 PART II

DISABILITY ACT 2005 S9

DISABILITY ACT 2005 S1(3)

DISABILITY ACT 2005 S7(1)

DISABILITY ACT 2005 (COMMENCEMENT) ORDER 2007 SI 234/2007 S2

DISABILITY ACT 2005 S9(4)

DISABILITY (ASSESSMENT OF NEEDS, SERVICE STATEMENTS & REDRESS) REGS 2007 SI 263/2007 REG 6(2)

CREEDON, STATE v CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51 1989 ILRM 104 1988/1/79

O'DONOGHUE v BORD PLEANALA & TALLON PROPERTIES LTD 1991 ILRM 750 1991/5/1081

NI EILI v ENVIRONMENTAL PROTECTION AGENCY UNREP SUPREME 30.7.1999 2000/13/4925

SECRETARY OF STATE FOR THE ENVIRONMENT v MJT SECURITIES LTD 1998 JPL 138 1998 75 P & CR 188

BYRNE v OFFICIAL CENSOR & ORS UNREP O'HIGGINS 21.12.2007 2007 IEHC 464

HOWARD & ORS v CMRS OF PUBLIC WORKS IN IRELAND 1994 1 IR 101

DIRECT UNITED STATES CABLE CO LTD v ANGLO-AMERICAN TELEGRAPH CO LTD & ORS 1876-77 2 LR APP CAS 394

TINKHAM v PERRY 1951 1 TLR 91 1951 1 KB 547 1951 1 AER 249

MACMANAWAY, IN RE 1951 AC 161

R v WIMBLEDON JUSTICES, EX PARTE DERWENT 1953 1 QB 380 1953 2 WLR 350 1953 1 AER 390

HALSBURYS LAWS OF ENGLAND 4ED VOL 44 PARA 863

HALSBURYS LAWS OF ENGLAND 4ED VOL 44 PARA 864

B (D) v MIN FOR HEALTH & HEPATITIS C COMPENSATION TRIBUNAL 2003 3 IR 12 2003/4/812

MULCAHY v MIN FOR MARINE UNREP KEANE 4.11.1994 1995/5/1198

DODD STATUTORY INTERPRETATION IN IRELAND 2008 PARA 8.06

R (GIRLING) v PAROLE BOARD & ANOR 2007 QB 783 2007 2 WLR 782 2007 2 AER 688

STATUTE

Interpretation

Commencement order - Requirement set out in commencement order "Persons under five years of age"- Interpretation -- Whether requirement applied at time of commencement of Act or time of application - Whether purposive approach applied - Whether literal approach applied - Whether meaning of statute was clear - Whether words might be implied - Appeal - Determination of disability appeals officer - Assessment of need - Eligibility criteria - Limitation of services - Whether requirement to give reasons for refusal - State (Creedon) v Criminal Injuries Compensation Tribunal [1988] IR 51, O Donohue v An Bord Pleanala [1991] ILRM 750, Ní Eilí v Environmental Protection Agency (Unreported, SC, 30/07/1999), Howard v Commissioner of Public Works [1994] 1 I.R. 101, Direct United States Cable Co v Anglo-American Telegraph Co. (1877) 2 App Cas 394, MJT Securities Ltd v Secretary of State for the Environment [1998] JPL 138, In re MacManaway [1951] AC 161, Tinkham v Perry [1951] ITLR 91, R v Wimbledon Justices, ex parte Derwent [1953] 1 QB 380, DB v Minister for Health (Unrep, SC, 26/3/2003), Mulcahy v Minister for the Marine (Unrep, Keane J, 4/11/94), Byrne v Official Censor [2007] IEHC 464 (Unrep, O Higgins J, 21/11/2007), Girling v Secretary of State for Home Department [2007] 2 WLR 782 considered - Disability Act 2005 (No 14), ss 1, 7, 9 and 15 - Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007 (No 263/2007) - Appeal dismissed (2009/148MCA - Hanna J - 8/12/2009) [2009] IEHC 540

Health Service Executive v Dykes and Gallahue

Facts These proceedings involved a statutory appeal brought by the appellant in respect of a determination made by the respondent as Disability Appeals Officer appointed pursuant to s. 15 of the Disability Act, 2005. The notice party was the father of a child, born on 28 August 2002 and suffering from a severe form of autism. The appeal herein related to a decision of the respondent allowing an appeal by the notice party against the appellant's decision to refuse the notice party's application for an Assessment of Need which had been brought under s. 9(1) of the Act. In addition to allowing that appeal, the respondent also found that the notice party's child remained eligible for an Assessment of Need under s. 9(1) and recommended that an Assessment be provided to him and completed within a 3 month period of the date of the determination. The appellant submitted, having regard to the terms of the Disability Act 2005 (Commencement Order) 2007, that only persons under the age of 5 were eligible to apply for assessment and consequently that did not apply to the notice party's child. It was submitted on behalf of the respondent that the Act applied to persons under the age of 5 as of 1 June 2007. The issue for determination by this court was the interpretation of the wording of the commencement order namely, that '1 June 2007 was fixed as the date upon which Part 2 of the Act came into force but only "in relation to persons under 5 years of age".' Consequently, the issue was whether a person, on the date of their application for an Assessment of Need pursuant to Part 2 of the Act, must be under five years of age or whether, on the other hand, it was sufficient if the applicant was under five years of age at the date of the coming into force of the Act, that being 1 June 2007, in which case the notice party's son was eligible and the determination reached by the respondent in that regard was valid. The appellant submitted that the assessment of need service was intended by the Minister to be put in place for children under 5 years of age with the consequence that the resources could be targeted at that early age group. The respondent on the other hand contended that the interpretation placed on the words "under 5 years of age" by the appellant was contrary to the purpose of the Act as it limited the rights intended to be conferred by the Act to a significantly greater extent that the terms of the Act required.

Held by Hanna J. in dismissing the appeal: That nowhere in the Act was it stated that Part 2 of the Act shall only apply to children under 5 years of age. Under section 1(3) the Minister was entitled to bring Part 2 of the Act into operation by reference to age. "Children" were defined in the Act as persons under 18 years of age. Nowhere in the Act or in the Commencement Order was there any statement to the effect that the right to an assessment was a right that could be lost. On a literal interpretation of the Commencement Order, it was clear that the Act was to apply to children who on 1 June 2007 were under 5 years of age. A purposive approach would lead to the same conclusion. This was so given the legislative intent behind the Act and the fact that the legislation created rights which the whole language of the Act and the supporting Statutory Instruments was designed to support and facilitate rather than stifle. Consequently, the right to an assessment of needs under s. 9 applied to all children under 5 as of 1 June 2007 and, thereafter, to all children under 5. In any event, the statutory instrument by which the Act was commenced did not entrench upon s. 9 rights and nor could it have. It was outside the competence of the Minister to introduce a time limit where no such limit was provided for in the Act.

Reporter: L.O'S.

Judgment of

Mr. Justice Michael Hanna

dated the 8th day of December, 2009

1 These proceedings are a statutory appeal brought by the Health Service Executive ("HSE") in respect of a determination made by the Disability Appeals Officer ("DAO") appointed pursuant to s. 15 of the Disability Act 2005 ("the Act"). The DAO is sited as respondent in the proceedings. The notice party is the father of Liam who was born on 28^th August, 2002. Liam suffers from a severe manifestation of autism. Mr. Gallahue has, at all times, acted in the capacity of a lay litigant. He has filed a comprehensive affidavit outlining his and his family's plight. The problems facing Liam and his family are immense and harrowing.

2 Mr. Gallahue has attended court, as far as I am aware, on a number of occasions. This matter was listed before me in October last in Castlebar, Co. Mayo at the Non-Jury/Chancery sittings having been transferred from Dublin. Mr. Gallahue did not attend, very understandably, because of his caring commitment to Liam. I was informed by the parties before me that, firstly, he wished the matter to proceed rather than be put back further into the Dublin list and, secondly, that he was content to adopt the argument of the respondent. On that basis the matter proceded.

The Issue

3 The determination in question involved an appeal brought by the Notice Party on behalf of his son, Liam Gallahue, a minor, whose date of birth is 28 August 2002, against the HSE's decision to refuse his application for an Assessment of Need which had been brought under s. 9(1) of the Act. The determination was delivered by the DAO on 12 June 2009 wherein the Notice Party's appeal against the HSE's finding that Liam was not eligible for an Assessment of Need was allowed. In addition to allowing the appeal, the DAO also found that Liam remained eligible for an Assessment of Need under s. 9(1) of the Act and recommended that an Assessment be provided to him and completed within a 3 month period of the date of the determination.

4 The HSE brought an appeal pursuant to s. 20 of the Act against the findings of the DAO and it is with that appeal which this decision is now concerned.

5 In the appeal, the HSE challenges the correctness of the finding of eligibility for Assessment of Need made by the DAO. Pursuant to the Disability Act 2005 (Commencement Order) 2007 ("the Commencement Order"), 1June 2007 was fixed as the date upon...