RY and ZR (A Minor Suing by Her Mother and Next Friend RY) v Disability Appeals Officer

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms Justice Marguerite Bolger
• Judgment Date: 11 January 2024
• Neutral Citation: [2024] IEHC 8
• Docket Number: [Record No. 2022/49MCA]

Between

RY and ZR (A Minor Suing by Her Mother and Next Friend RY)

Appellants

and

Disability Appeals Officer

Respondent

and

The Health Service Executive

Notice Party

[2024] IEHC 8

[Record No. 2022/49MCA]

THE HIGH COURT

Counsel for the appellants: Derek Shortall SC, Colin Smith BL.

Counsel for the respondent: Mark Harty SC, Stephen Hanaphy BL.

Counsel for the notice party: David Leahy SC, Cormac Hynes BL.

JUDGMENT of Ms Justice Marguerite Bolger delivered on the 11th day of January 2024

1 . This is an appeal on a point of law from the determination of the Appeals Officer dated 31 January 2022 pursuant to s. 20 of the Disability Act 2005 (hereinafter referred to as “the Act”). The appellants seek to set the determination aside on two grounds:-

I am satisfied that both grounds raise points of law over which this Court has jurisdiction pursuant to s. 20 of the Act.

• (1) The Service Statement fails to specify a timeframe for the services to be provided, in breach of s. 11(2) of the Disability Act and Regulation 18 of the Disability (Assessment of Needs, Service Statements and Redress) Regulation 2007 (hereinafter referred to as “Regulation 18”), thereby rendering the Service Statement incorrect.

• (2) The Appeals Officer failed to give adequate reasons for his decision.

Background

2 . The child Z was born on 15 February 2017 and was assessed as presenting with autism spectrum disorder and global developmental delay in her assessment report of 18 January 2021. A Service Statement was issued on 26 February 2021, which Z's mother considered failed to provide a timeframe within which services would be provided to Z and so she lodged a complaint with the Complaints Officer. The complaint was rejected and was unsuccessfully appealed to the Appeals Officer. The appellant says the Appeals Officer failed to engage with her arguments and that the reasons for his decision are unclear.

3 . I outline below what the law says an assessment of needs and a service statement should be and what they should include. I examine what the assessment of needs and service statement at issue here say and I then review the appellant's complaint to the Complaints Officer, her appeal to the Appeals Officer and the determination of the Appeals Officer.

The Disability Act 2005

4 . The Act has been described by Baker J. in the Court of Appeal as innovative and far reaching ( E.L.G. v. HSE [2022] IESC 14, at para. 2). It is a remedial Act that provides a right of enforcement of individual rights for disabled persons. The long title describes it as:

“An act to enable provision to be made for the assessment of health and education needs occasioned to persons with disabilities by their disabilities… for services to meet those needs… to provide for appeals by those persons in relation to the non-provision of those services”.

In J.N. and T.M. v. J.H. [2023] IESC 9 Dunne J., having cited the long title, said that the Act,

“was intended to provide for an assessment of the health and education needs of persons with disabilities. It provided for the provision of services to meet those needs, having regard to the resources available for them, and specifically it provided for appeals by persons in relation to the non-provision of services.” (at para. 31)

Assessment of needs

5 ,

“an assessment undertaken or arranged by the Executive to determine, in respect of a person with a disability, the health and education needs (if any) occasioned by the disability and the health services or education services (if any) required to meet those needs”.

Section 8 of the Act provides for an assessment of an applicant's needs which, according to s. 8(5) is to be done without regard to “the cost of, or the capacity to provide, any service identified in the assessment”. This has been described as a resource blind, gold standard approach. The assessment officer prepares a report which, pursuant to s. 8(7)(b)(iii) must set out, inter alia,

“a statement of the services considered appropriate by the person or persons referred to in subsection (2) to meet the needs of the applicant and the period of time ideally required by the person or persons for the provision of those services and the order of such provision”.

Service Statement

6 . If the assessment of needs determines that services are appropriate, a Liaison Officer will prepare a service statement. Section 11(7) of the Act requires the Liaison Officer to have regard to certain matters including the assessment report concerned as well as the practicability of providing the services identified in the assessment report. Regulation 18 requires a service statement to specify:-

• (a) the health services which will be provided to the applicant;

• (b) the location(s) where the health service will be provided;

• (c) the timeframe for the provision of the health services;

• (d) the date from which the statement will take effect;

• (e) the date for review of the provision of services specified in the service statement;

• (f) any other information that the Liaison Officer considers to be appropriate, including the name of any other public body that the assessment report may have been sent to under section 12 of the Act.

7 . Dunne J. in J.N. v. J.H. described the process as follows:-

“Thus, one can clearly see the task of the Liaison Officer and the matters that have to be dealt with by the Liaison Officer in completing the service statement. Key amongst those factors will be the location where the service will be provided and the timeframe for the provision of the health service at issue.”

8 . In C.M. v. HSE [2020] IEHC 406, Barr J. noted that the Liaison Officer does not adjudicate on a person's entitlement to receive service “but is merely indicating what services are available to the applicant at that time” (at para. 123). Having cited the C.M. decision, Dunne J. in J.N. v. J.H. said, at para. 67, that it was difficult to disagree with Barr J.'s observations and concluded:-

“it is clear that, so far as a Liaison Officer is concerned, they are obliged to indicate that, if services are not available at that time, to when such services will be available. The fact that a child is placed on a waiting list is not, per se, wrong and will inevitably be a reflection of the services that can be provided at any given time.”

9 . The possibility of a service statement referring a child for further assessment has arisen in some of the caselaw. In C.M. Barr J. saw nothing wrong with a service statement making an onward referral for further assessment. However whilst such a referral can be made, a referral for further assessment for the purpose of identifying required services cannot meet the statutory obligation for an assessment of needs to specify the services appropriate to meet the applicant's needs and the period of time for the provision of those services, reminiscent of Phelan J.'s finding in C.T.M. v. HSE [2022] IEHC 131 that a preliminary assessment of need which left over providing a diagnostic assessment as a service, did not meet the requirements of the Act.

Complaints and appeals

10 . Section 14(1)(d) of the Act states:

“ (1) An applicant 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;…

(d) the contents of the service statement provided to the applicant”.

This allows an applicant to make a complaint about, inter alia, the contents of their service statement to the Complaints Officer and from there, s. 18 allows for an appeal to an Appeals Officer. Dunne J. described what the Appeals Officer can do, at para. 71 of the Supreme Court's decision in J.N. v. J.H:-

“There is no doubt in my mind that an appeals officer is entitled to interrogate issues such as the date when a particular service could be provided and, equally, is entitled to interrogate the question as to whether or not those services could be provided elsewhere in the relevant functional area of the HSE.”

The Appeals Officer can make a recommendation to amend, vary or add to a service statement and, if there is an error in the service statement, including in relation to the date on which services could be provided, Dunne J. said, at para. 74, that “that must be corrected by means of a recommendation.”

11 . Section 18(5) provides:

“The appeals officer shall make a determination in writing in relation to the appeal affirming, varying or setting aside the finding or recommendation concerned and shall communicate the determination ( including the reasons therefor) to the applicant, the Executive and, if appropriate, the head of the education service provider concerned who shall comply with the determination.” [my emphasis]

So an Appeals Officer must give reasons for their decision, as confirmed by this Court in J.N. v. J.H. [2022] IEHC 407. The reasons for an Appeals Officer's determination should be both ascertainable and adequate but reasons can be derived from the documents or the content of the decision provided “that the reasons must actually be ascertainable and capable of being determined” (as per Phelan J. in N.T & Anor v HSE [2023] IEHC 109 at para. 62). Phelan J. went on to say, at para. 64,

“knowledge of the matters considered in a decision-making process can also be derived from participation in the assessment processes carried out and being a party to the reports submitted to the decision maker.”

This appellant's assessment of needs

12 . The appellant's assessment of needs of 18 December 2020 was an extensive, multidisciplinary assessment conducted by an occupational therapist, an educational psychologist and a speech and language therapist. The assessment is set out in a detailed 24 page document. At page 1 the sources of information are identified, including documents forwarded by the assessment officer, an interview...