M.B. v Hse

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 06 March 2023
• Neutral Citation: [2023] IEHC 99
• Court: High Court
• Docket Number: [Record No. 2022/9 JR]

Between:

M.B. (A.B. a Minor Suing by His Mother and Next Friend, M.B.)

Applicants

and

Health Service Executive

Respondent

[2023] IEHC 99

[Record No. 2022/9 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Assessment of need – Disability Act 2005 – Applicants seeking both mandamus and declaratory reliefs as to the nature and extent of the obligation on the respondent to review assessments of need – Whether there was also an ongoing duty of annual review of assessment of need under the Disability Act 2005

Facts: The second applicant was provided with an assessment report and the assessment carried out under Part 2 the Disability Act 2005 was reviewed once. He had been provided with several service statements. The service statement had been reviewed on an ongoing basis. Although he could apply for a new assessment under s. 9(8) of the 2005 Act, instead a further review of the original assessment was sought on his behalf on the basis that there had been a change in his circumstances. The first applicant instructed the institution of judicial review proceedings in January, 2022 seeking both mandamus and declaratory reliefs as to the nature and extent of the obligation on the respondent, the Health Service Executive (the HSE), to review assessments of need. It was common case that there was an ongoing obligation to review service statements pursuant to the Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007 (SI No. 263/2007) promulgated pursuant to s. 21 of the 2005 Act. The applicants argued that there was also an ongoing duty of annual review of assessment of need under the 2005 Act.

Held by Phelan J that, having regard to the clear language of the statutory provisions which provide separately and distinctly for the review of assessments and service statements, the fact that “assessment” and “assessment report” are terms of art, the different statutory functions served by each report together with the absence of any reference to the periodic review of assessment reports in s. 14 of the 2005 Act, she was satisfied that the carrying out of a review of the original assessment did not result in a statutory obligation to generate a new assessment report with a consequential ongoing duty of periodic and automatic review of assessments of need. She could not conclude that the difference in statutory treatment of the two instruments was a matter of legislative accident. Instead, she was satisfied that it reflected a deliberate legislative choice. Accordingly, she found that there was no statutory obligation on the HSE to carry out a second or further review of an assessment. She found that it followed from her finding that there was no statutory obligation on the HSE to create a further assessment report following assessment review that that there could be no question of a further obligation arising to specify a period within which a further review should be concluded on an application of s. 8(7)(b)(iv) of the 2005 Act. She held that relief by way of mandamus could not lie as the 2005 Act did not impose a duty on the HSE to conduct an annual review of assessment of needs, citing State (Sheehan) v Government of Ireland [1987] I.R.550 and Minister for Labour v Grace [1993] 2 I.R. 53. Similarly, as the declaratory relief sought was framed in terms of the existence of such a duty, she held that it too must be refused. She held that where there was a change of circumstances which might warrant fresh assessment, the pathway created under the 2005 Act was through a new application for assessment of needs under s. 9 of the 2005 Act. Given her finding that there was no obligation to conduct a second or further review of the assessment disposed of the proceedings, she held that the question of whether there was a statutory obligation on the HSE to conduct any review of an assessment at all arising from s. 8(7)(b)(iv) of the 2005 Act did not require to be determined, because a review had occurred in the case.

Phelan J refused the relief sought and dismissed the application.

Application dismissed.

JUDGMENT of Ms. Justice Siobhán Phelan delivered on the 6 ^th day of March, 2023.

INTRODUCTION

1 . The assessment of need process enacted under the Disability Act, 2005 [hereinafter “the 2005 Act”] results in the preparation of two documents: an assessment report and a service statement.

2 . It is common case that there is an ongoing obligation to review service statements pursuant to the Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007 ( SI No. 263/2007) [hereinafter “the 2007 Regulations”] promulgated pursuant to s. 21 of the 2005 Act. The Applicant argues, however, that there is also an ongoing duty of annual review of assessment of need under the 2005 Act. The HSE maintains, on the other hand, that while a first review has occurred in this case, there is no statutory obligation to review an assessment of need and more specifically, no obligation to review assessments on an ongoing basis in circumstances where an application may be made for a new assessment of need in the event of a change in circumstance or new information.

3 . The issue which arises for determination in these proceedings is whether there is an entitlement, enforceable by order of mandamus or declaratory relief in judicial review proceedings, to compel the carrying out of more than one review of an assessment of need under the 2005 Act.

FACTUAL BACKGROUND AND CHRONOLOGY

4 . The Applicant is a child (hereinafter “the Child”) who has been diagnosed with Autism Spectrum Disorder. His mother and next friend applied for an assessment of need pursuant to s. 9 of the 2005 Act in March, 2018 when the Applicant was nine years old. The resulting Assessment Report was completed in August, 2019 (outside the mandated statutory time-frame).

5 . The Assessment Report records on its final page (in accordance with s.8(7)(b)(iv)), that it is to be reviewed on the 30 ^th August 2020 while noting in bold text that “ reviews do not take place automatically, parents can apply for a review through the AON process.”

6 . The corresponding Service Statement issued in September, 2019.

7 . The Applicant's solicitor wrote to the HSE by letter dated the 7 ^th of October, 2019 to advise that the Service Statement was inadequate because it was inappropriate to simply state that the School Age Disability Team (“SADT”) would provide for his needs and no review date had been stated. It was further asserted that it was “ wrong in law” to treat the review of assessment as non-automatic.

8 . Both the Assessment Report and the Service Statement were challenged by the Applicants under the statutory complaints and enforcement procedures, which led to the re-issuing of a Service Statement, dated the 30 ^th of July, 2020 (but not received by Applicants until the 31 ^st of August, 2020) following recommendation of the Disability Complaints Officer made in December 2019. The Disability Complaints Officer also recommended that a realistic timeframe no later than the date of the review of the reissued service statement would be fixed for the commencement of interventions for the Child. The Disability Complaints Officer found with regard to the review of the Assessment Report that the requirement of s. 8(7)(b)(iv) was met by the inclusion of a review date. It was considered that the complaint that the statement that the review was not automatic was wrong in law fell outside the statutory complaints process.

9 . The revised service statement which issued on foot of the Disability Officer's Recommendation nominated March, 2020 as a start date for psychology, speech and language therapy and occupational therapy and nominated a review date of September, 2020. The services outlined in the Service Statement were services already being delivered through SADT and no referral for outside support service was identified.

10 . Thereafter, within the designated period, the assessment of need was subject to review and a document entitled “ Assessment Report” but bearing the words “ Review” issued on the 4 ^th of September, 2020 [hereinafter “ Review Report”]. This newly generated report referred to a “ review application”. If there was a review application, however, it has not been put in evidence before me and it seems from the papers that the review was initiated by correspondence dated the 28 ^th of August, 2020 from the Assessment Officer who had completed the original Assessment Report. This letter stated:

“The Disability Act, 2005 requires the review of Assessment Reports issued under its provisions to applicants deemed to meet the definition of disability contained in the Act [Section 8(7)(b)(iv)].

The time has come to review the Assessment Report for [Child]. The review of the Assessment Report is being undertaken within the same parameters as the original assessment of need under the Disability Act. The purpose of the review is to verify whether findings in the Assessment Report are still valid including the health and education needs of the applicant and the services required to address those needs. A review does not, in itself, necessitate a formal reassessment of any, or all, of the child's needs as originally identified and will only result in additional assessments where it is found that the original findings contained in the Assessment Report are no longer appropriate.

As [Child] is receiving a service from the School Aged Disability Team, they have been asked to participate in the review. You will receive a reviewed final assessment report and service statement shortly.”

11 . The terms of the said letter broadly reflect the position as stated in the HSE's Assessment of Need Standard Operating Procedure where it is stated that what is required by a “review” is a review of the Assessment Report and not a re-assessment. The Standard Operating Procedures states that...