The High Court found that the process used to assess the education needs of two children with autism did not comply with the Disability Act 2005. The court ruled that the National Council for Special Education (NCSE) had not properly assisted with the statutory assessments because schools were directed to rely on existing school records without being told that needs must be assessed without regard to service costs or availability.
The judgment, delivered by Ms Justice Marguerite Bolger on 12 January 2024, concerned separate judicial review proceedings brought by the children through their parents against the Health Service Executive (HSE). The NCSE was a notice party in one case and a respondent in the other. The Minister for Education was also a respondent in the second case.
The applicants sought to quash their assessment reports and require the HSE to complete assessments in accordance with the Act. Their challenge included the NCSE’s practice of asking schools to provide information from pupils’ support plans. The HSE and NCSE denied breaching their statutory duties.
The judge accepted the NCSE’s position that a professionally qualified teacher could have the appropriate expertise to be nominated under section 8(3). She also found that the NCSE could use school staff and existing arrangements, and that regulations governing the nomination process were not mandatory. The judgment did not find that teachers were inherently unsuitable.
However, the court found that the process used in these cases limited schools to information in existing student files and imposed short completion timeframes. Schools were not told that the statutory assessment had to identify education needs and appropriate services without regard to cost, capacity or whether a service was available at the child’s own school. The court said this could prevent needs beyond those already identified within a school’s resources from being recorded.
The judge also found that assessment officers could not simply transcribe the schools’ reports. Section 8 requires the officer’s own findings and determinations. The school’s input is assistance to that assessment, not an expert opinion to copy into the final report.
The court found for the applicants, but did not make final orders in the judgment. Justice Bolger said she would hear counsel further on what orders should be made. The judgment therefore records the court’s findings and the next procedural step; it does not specify the final relief granted.