KR and Another v Health Service Executive

• Jurisdiction: Ireland
• Judge: Ms. Justice Hyland
• Judgment Date: 19 April 2024
• Neutral Citation: [2024] IEHC 255
• Court: High Court
• Docket Number: Record No. 2024/2 JR

Between

KR and LR (A Minor) (Suing by his Mother and Next Friend)

Applicants

and

The Health Service Executive

Respondent

[2024] IEHC 255

Record No. 2024/2 JR

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms. Justice Hyland delivered on 19 April 2024

Introduction

1 This is a most unusual decision as it concerns a consent order i.e. an order that both parties to the litigation agree should be made by the Court. Normally, in private litigation, when parties agree to settle their differences and come to court with an agreed order, the Court will simply make that order without substantively reviewing its contents. However, the situation is somewhat different in judicial review. The position was explained by Donnelly J. in the recent Supreme Court decision in Ballyboden Tidy Towns Group v an Bord Pleanala & Ors [2024] IESC 4 as follows:

“It is important to recall that when the High Court makes an order for judicial review, it is exercising its inherent power to supervise the legality, rationality and procedural fairness of the activities of the District and Circuit Courts, tribunals and other public authorities (Hogan, Morgan and Daly, Administrative Law in Ireland, 5th Ed 2019, Ch 18). Thus, an applicant for judicial review is asking the High Court to exercise its supervisory function. That inherent power of the High Court can only be exercised when it has been established that the decision was unlawful (remedy of certiorari) or that unlawfulness is apprehended (remedy of prohibition) or that an order is required to compel compliance with a legal obligation (remedy of mandamus). Usually where all the relevant parties (including the notice party) are consenting to the quashing of an order, there will be very little to trouble the High Court in the exercise of its supervisory function. Nevertheless, the High Court in granting the relief sought does not do so as a matter of course. Instead, the High Court must be satisfied that it is a lawful exercise of its supervisory function based on the evidence and submissions made to it.”

2 These are judicial review proceedings. Therefore, where I am asked to make an order in these proceedings granting relief without a hearing, even where all parties are consenting to same, I must be satisfied that making the order is a lawful exercise of my supervisory function. In the circumstances identified in this judgment, I decided it necessary to consider in some detail whether I should make the consent order.

Nature of Consent Order

3 This case concerns a failure by the HSE to investigate a complaint under the statutory complaints process established by the Disability Act 2005 as amended (the “2005 Act”). The first applicant, Ms R., made an application on 14 February 2023 for an assessment of need under the 2005 Act in respect of her child, L.R. There is a statutory obligation to commence an assessment of needs within three months of the date of the receipt of the application under s.9(5) of the 2005 Act and the assessment of needs is to be completed within three months from the date the assessment commenced save in exceptional circumstances, per Regulation 10 of the Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007 ( S.I. No. 263 of 2007). In this case, that meant the assessment had to be commenced no later than 14 May 2023 and was required to be completed no later than 14 August 2023 save in exceptional circumstances.

4 The assessment was not completed by that date and a complaint was made to the respondent on 15 August 2023 under the 2005 Act. The solicitor for the applicants issued a protocol/pre-litigation letter to the respondent and the respondent's solicitors on 29 November 2023. The respondent replied on 7 December 2023 that the complaint would not be processed for a further 7 months.

5 These proceedings were then issued seeking an order of mandamus directing that the HSE process the complaint within 8 weeks from the date of the Order. Leave to seek judicial review was sought and obtained following a leave hearing on 29 January 2024.

6 Once leave was granted, negotiations took place between the parties. The respondent has now agreed to an order providing that the complaint will be processed within 8 weeks from the date of the order and that it will pay the applicant's costs. It has not filed a statement of opposition or attempted to defend the case in any way.

7 To understand the context of the consent order sought in these proceedings and why I considered it necessary to review the order, it is necessary to consider the statutory regime and the case of J.F. v Health Service Executive [2018] IEHC 294, as well as recent events in relation to complaints made under the 2005 Act.

Legislative framework

8 As identified above, the complaints process is governed by the 2005 Act and S.I. No. 263 of 2007. Complaints are made to the HSE and dealt with by individual Disability Complaints Officers (‘DCO’), who are, as provided by s.15 of the 2005 Act, independent in the performance of their functions. They are obliged to make findings in a written report, and may make recommendations which are enforceable under s. 22 of the 2005 Act.

9 Section 14 of the 2005 Act allows for complaints to be initiated for a number of reasons and provides in relevant part that:

“14.—(1) An application may, either by himself or herself or through

a person referred to in section 9(2), make a complaint to the Executive in relation to one or more of the following:

(a) a determination by the assessment officer concerned that he or she does not have a disability;

(b) the fact, if it be the case that the assessment under section 9 was not commenced within the time specified in section 9(5) or was not completed without undue delay;

(c) the fact, if it be the case, that the assessment under section 9 was not conducted in a manner that conforms to the standards determined by a body referred to in section 10;

(d) the contents of the service statement provided by the applicant;

(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.

10 Section 15 of the 2005 Act provides that:

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

(a) a finding that the complaint was or, as the case may be, was not well founded whether in part or in whole;

(b) if the report contains a finding that the Executive failed to commence an assessment within the period specified in section 9(5) or to complete an assessment without undue delay, a recommendation that the assessment be provided and completed within the period specified in the recommendation;

(c) if the report contains a finding that the person may have a disability, a recommendation that the person be the subject of a further assessment under section 9 within the period specified in the recommendation;”

11 In this case, the complaint was made under s. 14(1)(b) of the 2005 Act as there was a failure to commence and/or complete the report within the time prescribed. Such a complaint will usually be relatively straightforward as the extent of the investigation only requires the DCO to make enquires with the HSE as to whether or not the assessment of needs has been commenced or completed. If neither has occurred, the DCO will normally issue a report recommending that the assessment be commenced and/or completed with a specified period of time, pursuant to s. 15(8)(b) of the 2005 Act. If the DCO's recommendation is not complied with, enforcement may be sought in the Circuit Court.

12 There is no statutory timeframe in the 2005 Act or elsewhere for the determination of a complaint,...