Judgment: 2023-11-21 · Court archive

Court of Appeal rejects bid for repeated reviews of child’s disability assessment

The court dismissed an appeal over the HSE’s position that changed circumstances required a fresh assessment application, rather than a second review of the existing report. It also upheld the High Court’s decision to make no order for costs.

The Court of Appeal · [2023] IECA 286

Who, what, where, when and why

Who
  • AB
  • MB
  • Charles Meenan (Judge)
What

The court dismissed an appeal over the HSE’s position that changed circumstances required a fresh assessment application, rather than a second review of the existing report. It also upheld the High Court’s decision to make no order for costs.

Where

No place detail is included in this summary.

When

Judgment:

Why

Reasons reported in the judgment

The High Court had refused the family’s judicial review challenge. It found that a review of the original assessment did not create an ongoing statutory duty to generate a new report and periodically review it. The family appealed both that ruling and the High Court’s decision to make no order for costs.

The Court of Appeal has dismissed an appeal seeking a second review of a child’s disability assessment, holding that the Disability Act 2005 and related regulations do not require repeated reviews of the same assessment report.

The appeal concerned AB, a minor represented by his mother, MB. The HSE issued an assessment report in August 2019 and reviewed it in September 2020. After the family sought another review in September 2021, citing a focus on dysgraphia and dyspraxia, the HSE said the changed circumstances should be addressed through an application for a further assessment.

The High Court had refused the family’s judicial review challenge. It found that a review of the original assessment did not create an ongoing statutory duty to generate a new report and periodically review it. The family appealed both that ruling and the High Court’s decision to make no order for costs.

In a judgment delivered on 21 November 2023, Mr Justice Charles Meenan said the statutory scheme allows a further assessment application where circumstances materially change, new relevant information becomes available, or a material factual error is identified. But he found that reading the law as requiring repeated reviews of one report would leave little room for that further-application process: the review period might never expire, making the relevant provision largely redundant.

The court also noted that the regulations expressly provide for reviews of service statements every 12 months, while setting no equivalent recurring timetable for assessment reports. A liaison officer may amend a service statement in light of changed circumstances, and a new assessment report can lead to a new service statement.

The court did not consider the appeal’s arguments about complaints procedures or the requested order compelling the HSE to carry out a review, because its interpretation of the legislation resolved the case.

The Court of Appeal also upheld the High Court’s costs decision. The HSE had not sought costs in the High Court, and the trial judge had found the case did not warrant awarding the unsuccessful applicants all or part of their costs. The appeal was dismissed. The Court of Appeal’s provisional view was that, if the HSE sought its costs of the appeal, an award would be made against the appellant. The parties were given an opportunity to file written submissions on that issue.

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