N v Harraghy

JurisdictionIreland
JudgeMs. Justice Bolger
Judgment Date04 July 2022
Neutral Citation[2022] IEHC 407
CourtHigh Court
Docket Number[Record No. 2021/357 MCA]

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

Between
J.N.
T.M. (A Minor Suing by His Mother and Next Friend J.N.)
Appellants
and
John Harraghy
Respondent

and

Health Service Executive
Notice Party

[2022] IEHC 407

[Record No. 2021/357 MCA]

THE HIGH COURT

JUDGMENT of Ms. Justice Bolger delivered on the 4th day of July 2022

1

This is an appeal brought pursuant to s.20 of the Disability Act 2005 (hereinafter referred to as ‘the Act’) against a determination of the respondent Disability Appeals Officer (hereinafter referred to as the ‘Appeals Officer’) of 25 November 2021. For the reasons set out below I uphold the appeal. The matter will be remitted to an appeals officer for a fresh investigation and determination of the applicant's appeal against the decision of the Complaints Officer.

2

I set out below the applicant's asserted errors of law, the factual background, the Appeal Officer's determination, the submissions of the parties and a consideration of the Act and the powers of the appeals officer. I consider the arguments made about the appropriateness of the statutory appeal versus judicial review. I then assess whether the Appeals Officer fell into errors of law in his analysis and application of his jurisdiction and his consideration of the matters set out in s.11(7) of the Act.

Asserted errors of law
3

The notice of motion asserts the following errors of law:

  • (i) The respondent, at para. 10.7 of the determination, took an erroneous view of the law, thus erring in law, in finding that the Disability Complaints Officer did not have the prerogative to make provision for the delivery of services earlier than outlined in the Service Statement, in the premises that it was open to the said Disability Complaints Officer to make such a finding (and the Disability Complaints Officer, in his determination of 3 August 2020, proceeded on the basis that he had such a jurisdiction and did not deny having the said jurisdiction), pursuant to inter alia s. 14 and s.15 (and taking account of s.11(7)) of the Disability Act 2005;

  • (ii) The respondent, at para. 10.8 of his determination, took an erroneous view of the law, thus erring in law, in finding that he did not have jurisdiction to make a determination in relation to the dates for provision of any services that are outlined in a service statement, in the premises that the Disability Appeals Officer does not have the said jurisdiction, pursuant to inter alia s.18 (and taking account of s.11 (7)) of the Disability Act 2005, wherein the Disability Appeals Officer may affirm, vary or set aside the finding or recommendation;

  • (iii) The respondent, at para. 10.8 of his determination, took an erroneous view of the law, thus erring in law, in failing to make a determination in relation to the dates for provision of any services that are outlined in a service statement, in the premises that the Disability Appeals Officer does not have the said jurisdiction, pursuant to inter alia s.18 (and taking account of s.11(7)) of the Disability Act 2005, wherein the Disability Appeals Officer may affirm, vary or set aside the finding or recommendation;

  • (iv) The respondent, at inter alia paras. 10 and 11 of the determination, does not make his own findings in respect of the appeal, simply finding that the Disability Complaints Officer was obligated to have regard to s.11(7) of the Disability Act 2005, a point not in dispute. The complaint was inter alia that consideration was improper and did not take account of the law pertaining to such matters. Clearly the respondent did not properly investigate the applicants' complaints that provision for the delivery of services earlier than outlined in the Service Statement could be directed, in the premises that it was open to the said Disability Complaints Officer to make such a finding (and the Disability Complaints Officer, in his determination of 3 August 2021, proceeded on the basis that he had such a jurisdiction and did not deny having the said jurisdiction), pursuant to inter alia s. 14 and s. 15 (and taking account of s. 11(7)) of the Disability Act 2005. It was also open to the respondent to make such a finding;

  • (v) The respondent's findings should be set aside based on the manner in which the respondent reached his conclusions, amounting to an error in law, in the premises that:

    • a) No reasonable person/Disability Appeals Officer could draw the conclusions and/or inferences drawn by the Disability Appeals Officer, in the premises that inter alia the evidence and superior court authorities before the Disability Appeals Officer, correctly interpreted, supported, only or otherwise, a finding that the Disability Complaints Officer's determination should be varied or set aside and that the second named applicant was entitled to the provision of services earlier;

    • b) The conclusions and/or inferences drawn by the Disability Appeals Officer are unsustainable, unreasonable and/or abhorrent to logic and common sense, in the premises that inter alia the evidence and Superior Court authorities before the Disability Appeals Officer, correctly interpreted, supported, only or otherwise, a finding that the Disability Complaints Officer's Determination should be varied or set aside and the second named applicant was entitled to the provision of services earlier;

    • c) The conclusions and/or inferences drawn by the Appeals Officer are vitiated and/or undermined by a serious and significant error or a series of errors which together amount to such an error, in the premises that inter alia the evidence and Superior Court authorities before the Disability Appeals Officer, correctly interpreted, supported, only or otherwise, a finding that the Disability Complaints Officer's Determination should be varied or set aside and the second named applicant was entitled to the provision of services earlier;

    • d) The Disability Appeals Officer in his decision has erred in law and/or breached an express or implied statutory duty and/or breached fair procedures and natural and constitutional justice and/or vitiated and/or undermined the decision by a serious and significant error or a series of errors, in the premises that the Disability Appeals Officer failed to give any or any adequate weight to the evidence and Superior Court authorities;

    • e) The Disability Appeals Officer in his decision has erred in law and/or breached an express or implied statutory duty and/or breached fair procedures and natural and constitutional justice and/or vitiated and/or undermined the decision by a serious and significant error or a series of errors, in the premises that he failed to give adequate reasons, such as to enable the applicant, and any other reader, to understand/ascertain why the matter/appeal was decided as it was, what conclusions were reached on the principal important controversial issues, failure to disclose how any issue of law or fact was resolved and to enable the applicant or any other reader to know if the Disability Appeals Officer has directed her/his mind adequately to the issues the Appeals Officer has considered or is obliged to consider.

4

In summary, the errors of law as asserted by the applicant can be grouped into two issues pertaining to the process applied by the Appeals Officer in reaching his determination:

  • (1) A challenge to the Appeals Officer's finding that neither he nor the Complaints Officer had jurisdiction over the date identified in the service statement for the provisions of services to the appellant.

  • (2) Whether the Appeals Officer properly discharged his statutory duty pursuant to s.18(20)(d) to consider the matters referred to in s.11(7).

Factual background
5

The appellant is a special needs child who was found to meet the definition of disability in the Act. His mother applied for an assessment of needs in June 2018 and an assessment report issued on 27 January 2020 which stated that the appellant requires occupational therapy, psychology, physiotherapy and speech and language therapy with a timescale of “ASAP”. A service statement was issued on 18 August 2020 which identified a date of March 2023 for the provision of inter-disciplinary support to the appellant. The appellant's mother submitted a complaint to the disability Complaints Officer in September 2020, the detail of which was supplemented in April 2021, taking issue with, inter alia, the content of the service statement and particularly the start date of March 2023 for the services given that the assessment report confirmed that the appellant needed the services ASAP. She claimed that the HSE was failing to provide a service specified in the service statement.

6

The Complaints Officer's report of 3 August 2021 did not uphold the complaints. The Complaints Officer found, inter alia, that the contents of the service statement were correct, accurate and compliant with Clause 18 of the Regulations and Section 11(7) of the Act, and that the start date for the services to be commenced was “within the realms of the Act”. The appellant appealed this decision to the Appeals Officer (the respondent in the within proceedings) and submitted a detailed written submission which attached the HSE approved service plan for 2020 and criticised the Complaints Officer's finding that the provision of services to the appellant would result in a cost over-run, when considered against a budget of that size. The Appeals Officer dismissed the appeal by determination dated 25 November 2021, against which this statutory appeal is taken.

The Appeal Officer's determination
7

Part 1 of the determination sets out the background, part 2 sets out the issues raised by the appeal and part 4 outlines the Appeal Officer's investigation. The Appeals Officer confirmed that he had considered the documents furnished by the appellant and had asked the HSE to set out the present position regarding the...

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