JN and TM (A Minor Suing by his Mother and Next Friend JN) v John Harraghy & Health Service Executive

• Jurisdiction: Ireland
• Judge: Ms Justice Elizabeth Dunne
• Judgment Date: 27 April 2023
• Neutral Citation: [2023] IESC 9
• Docket Number: S:AP:IE 2022:000103
• Court: Supreme Court

Between

JN and TM (A Minor Suing by His Mother and Next Friend JN)

Respondents

and

John Harraghy

Appellant

and

Health Service Executive

Notice Party

[2023] IESC 9

O'Donnell C.J.

Dunne J.

Charleton J.

Woulfe J.

Hogan J.

S:AP:IE 2022:000103

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Provision of services – Assessment of needs – Disability Act 2005 – Appellant seeking to appeal a ruling of the High Court related to a finding in respect of the operation of ss. 15 and 18 of the Disability Act 2005 – Whether the appellant had jurisdiction to consider the dates for provision of any services provided for in the service statement

Facts: The first respondent applied for an assessment of the second respondent’s needs in June 2018. On 27th January 2020, an assessment report was issued stating that the second respondent required occupational therapy, psychology, physiotherapy and speech and language therapy as soon as possible. A service statement was issued on 18th August, 2020, which gave the date of March 2023 for the provision of the above services to the second respondent. The first respondent submitted a complaint to the Disability Complaints Officer in September 2020 taking issue with the content of the service statement and particularly the start date of March 2023 given to the family for provision of the services. The Complaints Officer dismissed those complaints in a report issued on 3rd August 2021. The report stated that the service statement was correct, accurate and was compliant with the Disability Act 2005 and that the start date given for the services to be commenced was within the realms of the Act. The first respondent appealed that decision to the appellant, Mr Harraghy (the Appeals Officer). She criticised the Complaints Officer’s findings that the provision of services to the second respondent would result in cost over-run and that there were not adequate resources to provide the required services at a closer date. The Appeals Officer dismissed the appeal by determination on 25th November 2021. The Appeals Officer stated in his determination that neither the Complaints Officer nor the Appeals Officer had the jurisdiction to alter any aspect of the services to be provided nor the time at which they were to commence. Against that determination a statutory appeal was taken to the High Court by the first respondent. A High Court decision of Bolger J dated 4th July 2022 found in favour of the respondents against the Appeals Officer: [2022] IEHC 357. The application for leave to appeal submitted by the notice party, the Health Service Executive, seeking to appeal the ruling of Bolger J related to a finding in respect of the operation of ss. 15 and 18 of the 2005 Act. The appeal was held by the Supreme Court in its determination to meet the threshold of general public importance under Article 34.5.4° of the Constitution, finding that there was a need for clarity on the provision of services for young people qualifying under the disability criteria under the 2005 Act, in this case the second respondent, and the entitlement of a Complaints Officer and/or a Disability Appeals Officer, where there is a refusal or a limited grant of services by the Health Service Executive, within the statutory appeals process, to alter the services initially proposed and when same are to be afforded the child: [2022] IESCDET 118.

Held by Dunne J that the Appeals Officer was wrong to conclude that he had no jurisdiction to consider the dates for provision of any services provided for in the service statement. Dunne J accepted that the Appeals Officer could only make a recommendation to amend, vary or add to the service statement, as opposed to directly altering the service statement itself, and that it was only the Liaison Officer who could alter, amend, or vary the service statement. Dunne J was satisfied that, having regard to the circumstances of the case, the Appeals Officer took an overly restrictive view of the powers contained in the 2005 Act. Dunne J held that if there was an error in the service statement as to the date on which services could be provided, that must be corrected by means of a recommendation.

Dunne J dismissed the appeal.

Appeal dismissed.

Judgment of Ms Justice Elizabeth Dunne delivered on the 27 ^th day of April 2023

Introduction

1 . TM is a child who satisfies the disability criteria under the Disability Act 2005 (“the 2005 Act”). His mother, JN, applied for an assessment of the child's needs in June 2018. On 27 ^th January 2020, an assessment report was issued stating that TM requires occupational therapy, psychology, physiotherapy and speech and language therapy. The assessment report underlined that these services were needed as soon as possible, or as was stated in the assessment report, “ASAP” for the child. A service statement was issued on 18 ^th August, 2020, which gave the date of March 2023 for the provision of the above services to TM. JN then submitted a complaint to the Disability Complaints Officer in September 2020, with supplemental details added in April 2021, taking issue with the content of the service statement and particularly the start date of March 2023 given to the family for provision of the services. She pointed to the fact the assessment report confirmed that TM needed the services as soon as possible and asserted that the HSE was failing to provide the service specified.

2 . The Complaints Officer dismissed these complaints in a report issued on 3 ^rd August 2021. The report stated that the service statement was correct, accurate and was compliant with the 2005 Act and that the start date given for the services to be commenced was within the realms of the Act. JN appealed this decision to John Harraghy (“the Appeals Officer”). In detailed submissions she criticised the Complaints Officer's findings that the provision of services to TM would result in cost over-run and that there were not adequate resources to provide the required services at a closer date. The Appeals Officer dismissed the appeal by determination on 25 ^th November 2021, against which a statutory appeal was taken to the High Court by JN. The Appeals Officer stated in his determination that neither the Complaints Officer nor the Appeals Officer have the jurisdiction to alter any aspect of the services to be provided nor the time at which they are to commence and this part of his determination forms the basis of the present appeal.

Appeals Officer's Findings

3 . Part 10 of the Appeals Officer's determination sets out his findings in respect of the issues raised by the appeal:

“10.4 In consideration of the argument that staff shortages or lack of resources are not a defence to the appellant's complaint I find that the complaints officer is obligated by virtue of the provisions of s 15(7) of the Act to give due consideration to the resources available in preparing his or her report.

(a) The complaints officer must also take account of all the matters referred to in s 11(7) of the Act. In particular sections (d) which make specific reference to the ‘practicability of providing the services identified in the assessment report’ and in the case of (e) ‘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.

(b) I find that the complaints officer took account of the provisions outlined and issued his report in accordance with the provisions of the Act.

10.5 Section 18(20) of the Act outlines the considerations which the Appeals [Officers] must have regard to, and these are included in s 11(7) of the Act. The express provision of a reference to resources is a significant stipulation.”

4 . The Appeals Officer's determination made two findings in relation to his jurisdiction and that of the Complaints Officer at [10.7] and [10.8]:

“10.7 I find that the complaints officer did not have the prerogative to make provision for the delivery of services earlier than outlined in the Service Statement.

10.8 I find that the jurisdiction of the Appeals Officer is outlined in the Disability Act and in that context the Appeals Officer does not have jurisdiction to make a determination in relation to the dates for provision of any services that are outlined in a service statement.”

5 . This appeal arises from a High Court decision of Bolger J. [2022] IEHC 357 dated 4 ^th July 2022, finding in favour of JN and TM against the Appeals Officer. The application for leave to appeal submitted by the HSE seeking to appeal the ruling of the Bolger J. related to a finding in respect of the operation of ss. 15 and 18 of the 2005 Act. It is noted in both the application for leave and the respondent's notice that the case at hand is a test case, with some 20 other appeals on similar grounds awaiting the conclusion of these proceedings. The appeal was held by this Court in its determination ( [2022] IESCDET 118) to meet the threshold of general public importance under Article 34.5.4° of the Constitution, finding that there was a need for clarity on the provision of services for young people qualifying under the disability criteria under the 2005 Act, in this case TM, and the entitlement of a Complaints Officer and/or a Disability Appeals Officer, where there is a refusal or a limited grant of services by the HSE, within the statutory appeals process, to alter the services initially proposed and when same are to be afforded the child.

Legislative Overview

6 . The statutory mechanism begins with the Liaison Officer at s. 11 of the 2005 Act. The Liaison Officer is charged with the preparation of a service statement specifying the services which will be provided to an applicant and the time period within which such services are to be provided. The Liaison Officer may also amend service statements. The...