E.L. v The Office of the Disability Appeals Officer

• Jurisdiction: Ireland
• Judge: Mr. Justice Oisín Quinn
• Judgment Date: 14 December 2023
• Neutral Citation: [2023] IEHC 709
• Court: High Court
• Docket Number: Record No.: 2022/44 MCA

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

Between

E.L. (A Minor), Suing by His Mother and Next Friend M.L.

Appellant

and

The Office of the Disability Appeals Officer

Respondent

and

Health Service Executive

Notice Party

[2023] IEHC 709

Record No.: 2022/44 MCA

THE HIGH COURT

Disability – Services – Errors of law – Appellant appealing on a point of law from a decision of the respondent – Whether the reasoning of the respondent was deficient or unclear

Facts: The appellant, born in January 2018, was diagnosed as suffering from autism, a disability under the Disability Act 2005, in October 2020. The Assessment Report of 8 October 2020 prepared under s. 8 of the 2005 Act recommended speech and language therapy, occupational therapy, psychology, and physiotherapy services and that those be commenced in October 2020. A Service Statement of 13 October 2020 prepared under s. 11 of the 2005 Act specified that the appellant would be provided with the following services “Development of Individual Family Service Plan (IFSP)” starting in November 2023. The appellant, through his mother, complained to the respondent, the Disability Complaints Officer (DCO), under s. 14 of the 2005 Act about the contents of the Service Statement and in particular about the start date of November 2023 for services. The DCO decided that the services could not be provided any sooner and rejected the complaint on 24 February 2021. The appellant appealed to the Disability Appeals Officer (DAO) who rejected the appeal in a decision of 26 January 2022. The appellant appealed to the High Court pursuant to s. 20 of the 2005 Act on a point of law from that decision. The appellant claimed that the decision should be set aside on the following grounds: (i) the DAO failed to distinguish between the s. 11(7)(d) ground of ‘practicality’ and the separate provision in s. 11(7)(e) concerning ‘budget’ and incorrectly appeared to conflate those two separate considerations together as a general issue of ‘resources’; (ii) the DAO accordingly failed to properly interrogate whether or not the provision by or on behalf of the notice party, the Health Service Executive (HSE), of the specified services at any earlier point than November 2023 would have been possible; (iii) there was an absence of any or any proper reasons for the decision; (iv) the reasoning of the DAO was deficient or unclear; (v) the DAO erred in approaching the appeal as one where the appellant carried an ‘onus of proof’ rather that viewing his role as investigative; and (vi) in general, the decision was vitiated by a serious and significant error or a series of such errors.

Held by Quinn J that in circumstances where the appellant was a young child with a diagnosis of autism and a recommendation in the Assessment Report that services commence immediately, a proposed commencement date of more than 3 years later for work to begin on developing an IFSP should have raised a serious concern and interrogation along the lines identified by Dunne J in JN v Harraghy & HSE [2023] IESC 9. Quinn J held that it was a significant error of law on the part of the DAO to conflate s. 11(7)(d) and 11(7)(e); each of those considerations had to be assessed and interrogated separately and not just conflated together as ‘resources’. Quinn J held that the letter of 23 December 2021 from the HSE was wholly inadequate and the extensive powers provided in the legislation to the DAO should have been triggered at an early stage. He held that was wholly unacceptable in a case of this sort that the appeal process itself became substantially delayed for reasons that were not explained and that delay in itself, in the particular circumstances of this case, should have led to the DAO utilising the powers provided for in s. 18 of the 2005 Act. Applying the principles set out in NECI v Labour Court [2021] IESC 36 as to the need for reasons, Quinn J held that the determination of the DAO was seriously deficient. Quinn J held that the finding that the onus was on the appellant in relation to ‘any disputed matters’ was wrong; the function of the DAO is investigative as explained by Dunne J in JN.

Quinn J held that the appellant had established multiple serious errors of law in the process as a whole and in the determination.

Appeal allowed.

JUDGMENT of Mr. Justice Oisín Quinn delivered on the 14th day of December 2023

Introduction

1 This case concerns a statutory appeal pursuant to section 20 of the Disability Act, 2005 (the ‘2005 Act’) on a point of law from a decision of the Disability Appeals Officer (the ‘DAO’) made on the 26 January 2022.

2 The appeal is brought on behalf of a young boy, E.L., who was born in January 2018. E.L. was diagnosed as suffering from autism, a disability under the 2005 Act in October 2020. The Assessment Report of 8 October 2020 prepared under Section 8 of the 2005 Act recommended speech and language therapy, occupational therapy, psychology, and physiotherapy services and that these be commenced in October 2020. A Service Statement of 13 October 2020 prepared under section 11 of the 2005 Act specified that E.L. would be provided with the following services “Development of Individual Family Service Plan (IFSP)” starting in November 2023.

3 E.L., through his mother, complained to the Disability Complaints Officer (“DCO”) under section 14 of the 2005 Act about the contents of the Service Statement and in particular about the start date of November 2023 for services.

4 The DCO decided that the services could not be provided any sooner and rejected the complaint on 24 February 2021. E.L. then appealed to the DAO who rejected the appeal in a decision of 26 January 2022. The substance of that decision has given rise to this ‘point of law’ appeal which was heard by the Court on Tuesday 14 November 2023.

5 The Appellant claims that the decision of the DAO should be set aside on the following grounds:

• (i) the DAO failed to distinguish between the section 11(7)(d) ground of ‘practicality’ and the separate provision in section 11(7)(e) concerning ‘budget’ and incorrectly appeared to conflate these two separate considerations together as a general issue of ‘resources’;

• (ii) the DAO accordingly failed to properly interrogate whether or not the provision by or on behalf of the HSE of the specified services at any earlier point than November 2023 would have been possible;

• (iii) there was an absence of any or any proper reasons for the decision of the DAO;

• (iv) the reasoning of the DAO in coming to his decision was deficient or unclear;

• (v) the DAO erred in approaching the appeal as one where the Appellant carried an ‘onus of proof’ rather that viewing his role as investigative; and

• (vi) in general, the decision of the DAO was vitiated by a serious and significant error or a series of such errors.

Background

6 E.L.'s mother made an application for an assessment of needs for E.L. on 7 June 2019. E.L. was 17 months old at that time. The initial reason for the application was stated to be:-

“[E.L.] has no speech, he babbles, he doesn't point, so communication is screaming, whinging etc. [E.L.] has lots of sensory difficulties, shakes and bangs head, dislikes noise, walks on toes etc. also red flags Autism. [E.L.] has had issues since birth. [E.L.] regulates himself everyday multiple times.”

7 The 2005 Act provides that the assessment of needs should commence no later than 3 months after the request is made, per section 9(5), and be finalised within 3 months of being commenced, save in exceptional circumstances when it should be finalised without undue delay, per Regulation 10 of the Disability (Assessment of Needs, Service Statements and Redress) Regulations of 2007, contained in S.I. 263 of 2007.

8 In other words, the Assessment Report should be finalised within a total maximum time of 6 months from the request being received. Here the Assessment Report was produced on 8 October 2020, some 16 months after the request was received.

9 The Assessment Report indicates that E.L. had a number of assessments carried out. These were done by a multidisciplinary team involving a senior clinical psychologist, a senior speech and language therapist and a senior occupational therapist. As a result of these assessments, the assessment officer determined that E.L. had a disability as defined by the 2005 Act. This finding is a requirement necessitated by section 8(7) of the 2005 Act. The assessment officer is also required to indicate the nature and extent of the disability and he stated that the assessments showed that “[E.L.] is currently presenting with Autistic Spectrum Disorder based on DSM V diagnostic criteria”.

10 The Assessment Report then sets out the health and education needs of E.L. and specifies the interventions and services required as being speech and language therapy, occupational therapy, psychology, and physiotherapy services and the timescale for commencing each of the services is specified to be October 2020. In other words, the assessment officer specified that these particular services were required and that they were essentially required to be commenced immediately.

11 During submissions, counsel for the Appellant drew the Court's attention to the dicta of Faherty J. in JF v HSE [2018] IEHC 294 who in turn adopted the statements of Peart J. in OC V Minister for Education [2007] IEHC 170 where he addressed the importance of early intervention in cases where autism was diagnosed. In that regard Peart J held as follows:-

“That duty extended at that stage to completing a diagnosis within a time-frame which was reasonable given his age and the recognised importance of early intervention should a positive diagnosis be made in due course. The fact that diagnosis was not completed until the end of November 2002 and reported on the 9th December 2002 means a delay from referral...