O.J. and Anor v Disability Appeals Officer

• Jurisdiction: Ireland
• Judge: Ms Justice Nessa Cahill
• Judgment Date: 22 December 2025
• Neutral Citation: [2025] IEHC 749
• Court: High Court
• Docket Number: Record Number 2025/67 MCA

In the Matter of An Appeal Pursuant to Section 20 of the Disability Act 2005

Between

O.J. and H.J. (a minor suing by his mother and next friend O.J.)

Appellants

and

Disability Appeals Officer

Respondent

and

Health Service Executive

Notice Party

[2025] IEHC 749

Record Number 2025/67 MCA

THE HIGH COURT

JUDGMENT of Ms Justice Nessa Cahill delivered on 22 December 2025

Introduction

1 This is an appeal brought pursuant to section 20 of the Disability Act 2005 (“ the 2005 Act”) on a point of law. It is an appeal against a determination of the disability appeals officer (“ the DAO” or “ the Respondent”) of 22 January 2025 (“ the Determination”).

2 The Determination concerns the provision of services for a child (now 17 years old) who was assessed in 2020 to have Developmental Coordination Disorder (“ DCD”), but not to meet the diagnostic criteria for an assessment of autism spectrum disorder (“ ASD” or “ autism”) (“ the 2020 Assessment”). The services to be provided on foot of that assessment were set out in the service statement issued on 11 March 2020 (“ the 2020 Service Statement”). The appeal concerns – in broad terms – the provision of services to deal with the 2020 Assessment as set out in that Statement.

3 This appeal has been overtaken by events in a number of significant respects. First, there was a new assessment on 9 December 2024 which confirmed that the child meets the diagnostic criteria of autism (“ the 2024 Assessment”). This was confirmed by an assessment report dated 9 April 2025. That report recommended that the diagnosis of autism would best be met in the HSE's Children's Disability Network Team (“ CDNT”) (among other recommendations). Second, a new service statement was issued on 24 April 2025 on foot of the 2024 Assessment which sets out the services which must now be provided in light of the 2024 Assessment and recommends the provision of services through the HSE's CDNT, which includes psychology, speech and language therapy and occupational therapy resources (“ the 2005 Service Statement”). Third, as the 2025 Service Statement also reports, the child and his family have attended the CDNT waiting list clinic; an Individual Family Service Plan has been completed; the child is “ now active” in the CDNT; and it was then expected that the necessary support would be provided by that Team from July 2025. During the hearing of this appeal on 30 September 2025, it was indicated that at least some of those services were being provided.

4 It was common case between the three parties that this appeal is limited to a challenge to the 2020 Service Statement dealing with the needs identified in the 2020 Assessment. However, the 2020 Assessment no longer fully reflects the needs of this child: his needs have now been assessed to be different and additional to those which were identified in that Assessment. Consequently, the services which are required to meet his needs are no longer the same.

5 Despite this change in understanding and assessment of the child's needs, this appeal challenging a determination based on the 2020 Assessment was proceeded with. I have significant doubts as to the utility of these proceedings or the benefit the Appellants may derive from them, a point to which I will return.

6 The following topics will be addressed in this judgment:

• — Background

• — The Determination

• — Futility/mootness of the appeal

• — Test to be Applied

• — Scope of the Appeal

• — First Ground: Obligation to make recommendations

• — Second Ground: Irrationality

• — Section 11(7)

• — Alleged error of law regarding start dates

• — Conclusions

Background

7 In the course of this appeal, including in the written and oral submissions presented, counsel for the Appellants paid considerable attention to the history to this appeal and the substantive issues that gave rise to the Determination.

8 It warrants emphasis that the Appellants were successful in the appeal to the DAO and the appeal is on a point of law only as regards the form of recommendation that was made. Accordingly, the only real issue in contention is whether the DAO erred in law in making a recommendation on 22 January 2025 for the preparation of another service statement. The Appellants' case it that she should instead have made “ an enforceable recommendation for the provision of specific services by a specific date as she was required to do under s. 15(8)(f) of the 2005 Act” (the Appellants' written submissions at [19]).

9 The Appellants' case largely hinges on the interpretation of section 15(8)(f) of the 2005 Act. In these circumstances, the relevance of the detailed factual background is somewhat limited. This is subject to the qualification that the history of this matter shows an obvious and significant delay in the provision of services to the child. Both the DAO and the HSE accept that the time lag for the provision of services in this matter was regrettable.

10 The background facts may be summarised as follows:

11 The First Appellant (“ the mother”) is the mother of the Second Appellant (“ the child”), who was diagnosed with DCD in 2016. The child had been provided with primary care speech and language therapy in 2011 and 2013 and, following the DCD diagnosis, received primary care speech and language and occupational therapy in 2018. In November 2018, the mother applied for an assessment of need for the child, pursuant to section 9 of the 2005 Act. He was then ten years old.

12 The Appellants received the 2020 Assessment on or about 20 January 2020, recommending the provision of speech and language, psychology, physiotherapy and occupational therapy services “ as soon as possible”. The 2020 Service Statement was issued by a Liaison Officer (“ LO”) on 11 March 2020. That Statement gave a start date for the provision of psychology and speech and language therapy of January 2023, with occupational therapy to commence in December 2021.

13 The Appellants lodged a statutory complaint to a Disability Complaints Officer (“ DCO”) on 21 October 2020, pursuant to section 14(1)(e) of the 2005 Act. On 30 October 2020, the DCO rejected the complaint on the basis that the primary care service provider (the HSE) could not provide the services sooner and the DCO was aware of no earlier intervention options with other service providers.

14 On 8 December 2020, the Appellants appealed the findings of the DCO to the Respondent pursuant to section 18(1) of the 2005 Act. The Appellants specifically challenged the DCO's reliance on staff shortages or lack of resources as a defence to the complaint. The Appellants asked the DAO to set aside the finding of the DCO and to make a determination that the services must be provided within a specified period of time “ or, alternatively, to remit the matter to the DCO with a direction that the DCO do so”.

15 An amended service statement was issued on 5 March 2021, setting out start dates of January 2023 and July 2022 for the recommended services.

16 In October 2021, the child was discharged from primary care occupational therapy.

17 On 9 November 2021, a determination was issued by the DAO upholding the DCO's recommendation. That determination included the finding that the DAO lacked jurisdiction to make a recommendation in relation to the dates for provision of services.

18 In May 2022, the child was discharged from primary care psychology services.

19 The Appellants issued a statutory appeal to the High Court on a point of law, which was ultimately conceded by the DAO (on the basis of the Supreme Court judgment in JN and TM v Harraghy [2023] IESC 9 (“ JN”)).

20 By court order dated 14 June 2023, the matter was remitted to the DAO “ for reconsideration in light of the judgments of this Honourable Court in N v Harraghy [2022] IEHC 407 and the Supreme Court in [JN].”

21 The Appellants requested a review of the child's assessment in April 2024 and it seems the formal review commenced on 24 September 2024, with assessments being carried out in October 2024. A clinical psychology report was issued in November 2024.

22 As of December 2024, the child was not waitlisted for psychology, speech and language therapy or occupational therapy via primary care services (it is common case that the child had not been in receipt of services directed to the 2020 Assessment for some time).

23 The 2024 Assessment indicating that the child does meet the diagnostic criteria for an autism assessment was issued to the mother on 10 December 2024. There was no National Council for Special Education (“ NCSE”) input into this report and a further report was produced on 9 April 2025 including this input. These reports recommended a move away from primary care to the care of an interdisciplinary team under the Children's Disability Network Team (“ CDNT”).

24 On 11 December 2024, the mother was provided with a referral form to access the CDNT.

25 The Determination under appeal was delivered on 22 January 2025.

26 This appeal on a point of law was then issued on 11 February 2025, grounded on an affidavit sworn by the mother. A replying affidavit was sworn by the Respondent on 10 April 2025 and an affidavit was sworn on behalf of the HSE on 27 May 2025.

27 The 2025 Service Statement (which addressed the needs identified in the 2024 Assessment) was produced on 24 April 2025.

28 The child and his family have attended the CDNT waiting list clinic; an Individual Family Service Plan has been completed; the child is “ now active” in the CDNT (according to the 2025 Service Statement); and at least some of those services recommended in that service statement are being provided.

The Determination

29 As the Appellants themselves state, they were comprehensively successful before the DAO. The findings are not therefore challenged or of direct relevance here.

30 The Determination addressed the issue of private service providers as follows:

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