N.T. v Hse

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 06 March 2023
• Neutral Citation: [2023] IEHC 109
• Court: High Court
• Docket Number: [Record No. 2022/136 JR]

Between:

N.T. and J.H. (A Minor Suing by His Mother and Next Friend, N.T.)

Applicants

and

Health Service Executive

Respondent

[2023] IEHC 109

[Record No. 2022/136 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Assessment of need – Disability Act 2005 – Applicants seeking an order of mandamus compelling the respondent to commence and complete a review of the second applicant’s assessment of need – Whether the results of the review conducted were amenable to challenge in judicial review proceedings on the grounds advanced

Facts: The applicants, in proceedings for which leave was granted, sought the following relief: (1) an order of mandamus compelling the respondent, the Health Service Executive, to commence and complete a review of the second applicant’s assessment of need, pursuant to the Disability Act 2005 and the Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007 (S.I. No. 263/2007), to include any necessary assessments/re-assessments, within six weeks or other such period considered reasonable by the High Court; (2) a declaration that the respondent had failed to comply with its statutory obligations to the applicants pursuant to the 2005 Act and the 2007 Regulations, in particular Article 11 of the said regulations, in the premises that having completed an assessment of need review in respect of the second applicant on 13 November 2019 and having stated, in compliance with Article 11 of the 2007 Regulations, in the assessment report that the said assessment was to be reviewed on 13 November 2020, the respondent was obligated to commence and complete the review on that date or within a reasonable period of time after that date, whether by virtue of a general statutory obligation, in particular under s. 8(7)(iv) of the 2005 Act, or specifically in the circumstances prevailing in the proceedings; (3) if necessary, a declaration that the purported review was wholly inadequate, prepared without regard to relevant material, and irrational and unreasonable; and (4) if necessary, an order of certiorari quashing the assessment report of the respondent of 11 January 2022. The applicants relied on ss. 9, 8(7), 8(7)(iv) and 14 of the 2005 Act and Articles 11 and 24 of the 2007 Regulations as mandating a review of the original assessment. The applicants further maintained that the revised assessment report which issued and which recorded a determination of no disability within the meaning of the 2005 Act was deficient in that it failed to reflect consideration of the earlier report identifying Autism Spectrum Disorder which had been considered as part of the original assessment.

Held by Phelan J that, as a review was conducted in the case, the real issue in the proceedings was whether the results of that review were amenable to challenge in judicial review proceedings on the grounds advanced. Phelan J held that, so long as she had not been persuaded that findings or determinations were legally flawed whether because arrived at using an unfair process or based on incorrect facts or tainted by conjecture or speculation or that the reasons drawn from such facts were not cogent or bore no legitimate connection to the adverse finding to such an extent as to vitiate the decision or was otherwise in excess of jurisdiction by reason of an error of law or the absence of evidence capable of supporting the decision such that it was not a decision which was open to the decision maker to reach, she should not intervene by way of relief in judicial review proceedings. She had not been persuaded that any grounds existed which would warrant the exercise of jurisdiction in judicial review proceedings. She was satisfied that the 2005 Act s. 14 mechanism was the appropriate remedy the real issue in the proceedings, namely, whether the finding of no disability within the meaning of Part 2 of the 2005 Act was correct having regard to the factual position established on the evidence 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 . This case concerns the assessment of need [hereinafter “AON”] process enacted under the Disability Act, 2005 [hereinafter “the 2005 Act”] which is the subject of a separate judgment delivered by me today in M.B. v. HSE [2023] IEHC 99.

2 . The AON process results in the preparation of two documents: an assessment report and a service statement. While the issues in this case and M.B. are not identical, both cases concern the proper exercise of the HSE's power to review assessment reports prepared under Part 2 of the 2005 Act. In this case the Second Applicant was assessed as having a disability within the meaning of the 2005 Act during an assessment of need conducted under the Act and this finding was recorded in the assessment report which issued. Following a review of the assessment, however, the assessment officer concluded that the Second Applicant no longer had restrictions such as would qualify him as having a “ disability” as defined under the 2005 Act.

3 . While it is accepted by the HSE that there is an ongoing obligation to review service statements in accordance with the requirements of Disability Regulations 2007 (S.I. No. 263/2007) [hereinafter “the 2007 Regulations”] promulgated pursuant to s. 21 of the 2005 Act, the nature and extent of the duty to review assessments of need has proven more controversial.

4 . As apparent from my judgment, the primary issue in M.B. was 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 carried out under the 2005 Act, it being accepted in that case that a first review of the assessment had taken place.

5 . In this case the parties have joined issue on the pleadings and in argument before me on the even more fundamental question of whether there is a duty, enforceable by way of relief in judicial review proceedings, to review an assessment report at all. In MB, I found that there is no entitlement to a second or subsequent review of an assessment report under Part 2 of the 2005 Act but instead the option to seek a new assessment of needs. I did not determine the more fundamental question of whether there is any duty enforceable by way of judicial review to carry out a first review of the assessment of needs. For reasons set out below, I do not consider it appropriate or necessary for me to do so in these proceedings either.

6 . What is incongruous about this case is that on the one hand the Applicant seeks relief by way of mandamus compelling a review of assessment on the apparent premise that no review has taken place, whilst on the other hand seeking to quash a decision of the HSE has taken following a review of the assessment of needs. There is an obvious contradiction in the Applicant's position: the case is either that there is a duty to conduct a review but no review has taken place or that a review has taken place but the finding made in that review process is unsustainable as legally flawed.

7 . No real explanation was forthcoming during the hearing before me for the inherent contradiction between the two premises on which the case was advanced in pleadings but the case was opened before me on the basis that the primary issue in the proceedings (although pleaded as secondary) related to the adequacy of the review which was carried out and the lawfulness of the decision taken on review that the Second Applicant no longer has a disability within the meaning of the 2005 Act. For its part, the HSE was anxious to establish that it was not under an obligation to conduct a review of an assessment of needs, even though it had done so in this case, seemingly because this question is arising in other cases and will need to be determined.

FACTUAL BACKGROUND AND CHRONOLOGY

8 . The Second Applicant is a child (hereinafter “the Child”) born in July, 2007 who has special needs. Various private assessments were sought by the Child's parents and a clinical psychologist's report was obtained in February, 2014 and subsequently updated in which a diagnosis of Autism Spectrum Disorder [hereinafter “ASD”] was made. A report was also obtained privately from an occupational therapist who found difficulties which it was said would not be unusual for a person on the autistic spectrum, Swan Neck Deformity, Dyspraxia and Sensory Processing Disorder.

9 . The Child's mother, the First Applicant, applied for an AON pursuant to s. 9 of the 2005 Act in March, 2019 when the Second Applicant was eleven years old. She submitted the privately obtained assessments to the Assessment Officer. In the report from the private occupational therapist it was stated that:

“should it transpire that [name] does not meet the diagnostic criteria for ASD; he meets the criteria for a diagnosis of Developmental Coordination Disorder (DCD)/Dyspraxia according to the DSM-V. His difficulties with sensory processing, most notably in the areas of tactile, proprioceptive auditory and vestibular processing, are consistent with a diagnosis of Sensory Processing Disorder (SPD). It is important to note that Developmental Coordination Disorder (DCD)/Dyspraxia and Sensory Processing Disorder (SPD) are developmental conditions that endure across the life span. While his motor coordination and sensory processing deficits may cease to impact him in such a pervasive manner as he grows and matures into adulthood and should he score in the average range on future motor proficiency tests, it will not negate the fact that he has these diagnoses.”

10 . The First Applicant maintains on affidavit that the HSE did not initially accept that the Child was autistic (reference is made in the Occupation Therapy Report exhibited by the First...