I.B. v Hse

• Jurisdiction: Ireland
• Judge: Ms Justice Bolger
• Judgment Date: 02 October 2023
• Neutral Citation: [2023] IEHC 537
• Court: High Court
• Docket Number: [Record No. 2022 188 JR]

Between

I.B. (A Minor Suing by His Father and Next Friend M.B.)

Applicant

and

The Health Service Executive

Respondent

[2023] IEHC 537

[Record No. 2022 188 JR]

THE HIGH COURT

Counsel for the applicants: Derek Shortall SC, Maeve Cox BL

Counsel for the respondent: David Leahy SC, Cormac Hynes BL

JUDGMENT of Ms Justice Bolger delivered on the 2 ^nd day of October 2023

1 . This is an application for Judicial review seeking an Order of Certiorari quashing the decision of the Disability Complaints officer (DCO) of 22 February 2022 on the grounds that it failed to process the applicants' complaint properly and did not make appropriate recommendations in respect of service provision, and related declaratory reliefs. For the reasons set out below I am granting Certiorari.

Background

2 . IB is a 7 year old child for whom an application for an Assessment of Need pursuant to the provisions of the Disability Act 2005 (“the 2005 Act”) was made in October 2018. A meeting took place on 22 July 2019 and an Assessment Report issued on 19 November 2019, which determined that this child has a disability as defined by the 2005 Act and identified various interventions and services required. A Service Statement pursuant to the 2005 Act issued on 19 November 2019 (“the first Service Statement), detailing the services to be provided by Enable Ireland in Sandymount, all but one of which were to start on 22 July 2019. A Review Service Statement was issued on 16 April 2021 (“the second Service Statement”) which listed the services to be provided, including Occupational Therapy, Psychology, Speech and Language Therapy, with a start date of July 2019.

3 . By letter dated 3 March 2021, Enable Ireland wrote to the applicants in respect of the national reconfiguration of disability services and this child's transfer to a Children's Disability Network Team 4, in Leopardstown with effect from 28 June 2021. In May 2021, the initial team interview was held which resulted in an Individual Family Service Plan Report, dated 20 May 2021 which explained how services to children with a disability was due to change in June, 2021, and that this child would be moving to the Ballyogan Centre in Leopardstown.

4 . By letter sent to the respondent's Disability Complaints Officer dated 22 December 2021, solicitors on behalf of the applicants instituted a complaint under s.14(1)(e) of the Disability Act, 2005, in respect of the failure to provide or to fully provide a service specified in the Service Statement. The letter enclosed a copy of the second Service Statement dated 16 April 2021.

5 . A revised Service Statement (“the third Service Statement”) issued on 14 January 2022 which was not referred to in the application for leave and which was first identified by the HSE in responding to the within application.

6 . By decision dated the 22 February 2022, the DCO did not uphold the applicant's complaint. The decision made no mention of the third Service Statement. The applicants challenge that decision. Leave was granted to bring this application on 21 March 2022. An Individual Family Service Plan (IFSP) meeting was held on 31 March 2022 by the CDNT in Leopardstown.

Relevant Statutory Provisions

7 . Section 9 of the Disability Act provides for an Assessment of needs:-

“9.—(1) Where—

(a) a person (“the person”) is of opinion that he or she may have a disability, or

(b) a specified person (“the person”) is of that opinion in relation to another person and the person considers that by reason of the nature of that other person's disability or age he or she is or is likely to be unable to form such an opinion,

the person may apply to the Executive for an assessment or for an assessment in relation to a specific need or particular service identified by him or her”

8 . Section 8(7) of the 2005 Act provides that an assessment report shall set out the following;

“ (a) whether the applicant has a disability,

(b) in case the determination is that the applicant has a disability—

(i) a statement of the nature and extent of the disability,

(ii) a statement of the health and education needs (if any) occasioned to the person by the disability,

(iii) a statement of the services considered appropriate by the person or persons referred to in subsection (2) to meet the needs of the applicant and the period of time ideally required by the person or persons for the provision of those services and the order of such provision,

(iv) a statement of the period within which a review of the assessment should be carried out.”

9 . Section 11(2) of the 2005 act provides that:-

“ (2) Where an assessment report is furnished to the Executive and the report includes a determination that the provision of health services or education services or both is or are appropriate for the applicant concerned, he or she shall arrange for the preparation by a liaison officer of a statement (in this Act referred to as “a service statement”) specifying the health services or education services or both which will be provided to the applicant by or on behalf of the Executive or an education service provider, as appropriate, and the period of time within which such services will be provided.”

10 . Section 11(7) of the 2005 Act provides:-

“ (7) Without prejudice to the generality of subsection (2), in preparing a service statement the liaison officer concerned shall have regard to the following—

(a) the assessment report concerned,

(b) the eligibility of the applicant for services under the Health Acts 1947 to 2004,

(c) approved standards and codes of practice (if any) in place in the State in relation to the services identified in the assessment report,

(d) the practicability of providing the services identified in the assessment report,

(e) in the case of a service to be provided by or on behalf of the Executive, the need to ensure that the provision of the service would not result in any expenditure in excess of the amount allocated to implement the approved service plan of the Executive for the relevant financial year,

(f) the advice of the Council, in the case of a service provided by an education service provider, in relation to the capacity of the provider to provide the service within the financial resources allocated to it for the relevant financial year.”

11 . Section 14 of the 2005 Act provides for a complaints procedure in respect of assessments, Service Statements, or the Executive's failure to provide the services specified in a Service Statement of various grounds. Relevant to the underlying complaint in this case is the ground set out in s. 14(1)(e), which provides:-

“ (e) the fact, if it be the case, that the Executive or the education service provider, as the case may be, failed to provide or to fully provide a service specified in the service statement.”

12 . Section 15(6) of the Act states:-

“ Where a complaints officer is of opinion that a complaint is not suitable for such resolution as aforesaid, he or she shall investigate the complaint and shall give the applicant concerned and, if appropriate, the assessment officer concerned, the liaison officer concerned, the education service provider concerned and any other person having an interest in the matter, an opportunity to be heard by him or her and to present to him or her any evidence relating to the complaint and shall prepare a report in writing in relation to it setting out his or her findings and recommendations and shall furnish a copy of the report to the applicant, the Executive and, if appropriate, the assessment officer concerned, the liaison officer concerned and the head of the education service provider concerned.”

13 . Section 15(7) of the 2005 Act provides:

“ In addition to any other matter to which a complaints officer may, as he or she considers appropriate, have regard to in the performance of his or her functions, he or she shall have regard to the matters referred to in section 11(7).”

14 . Section 15(8)(f) provides:-

“ (8) A report of a complaints officer may contain one or more of the following: …

(f) if the report contains a finding that the Executive or an education service provider failed to provide or to fully provide a service specified in the service statement, a recommendation that the service be provided in full by the Executive or the education service provider or both as may be appropriate within the period specified in the recommendation.”

15 . Section 22 of the 2005 Act provides an enforcement mechanism for recommendations issued by the Complaints Officer and determinations of the Appeals Officer if these are not complied with which are binding on the service provider, usually the HSE, and are enforceable in the Circuit Court after a period of three months has elapsed.

The Applicants' Challenge

16 . The applicants challenge the decision of the Disability Complaints Officer of the 22 ^nd of February 2022 for wrongly addressing the first service statement and s.11(2) even though their complaint was about the second service statement and s.14(1)(e). Their written submissions summarise their challenge as follows:-

“ i. The Complaints Officer fundamentally misconstrued the complaint made, the legal and factual issues arising, and erred in law and in fact by failing to consider or determine the actual complaint before him, or make recommendations as required;

ii. The Complaints Officer failed to consider matters, which he was statutorily obliged to have regard to;

iii. The Complaints Officer considered matters, which he ought not to have considered;

iv. The Complaints Officer's decision was irrational, unreasonable, and unambiguously flies in the face of fundamental reason and common sense;

v. The Complaints Officer's decision was contrary to fair procedures, natural and constitutional justice and the Complaints Officer fettered his discretion and failed to...