The High Court has found multiple serious errors of law in a statutory appeal concerning delays in services for a young child with autism, including the Disability Appeals Officer’s failure to examine separately whether earlier services were practical and whether they would exceed the Health Service Executive’s budget.
Mr Justice Oisín Quinn delivered judgment on 14 December 2023 in E.L.’s appeal under section 20 of the Disability Act 2005. The appeal challenged a January 2022 determination by the Disability Appeals Officer (DAO), which had upheld the rejection of a complaint about the child’s service statement. The High Court heard the appeal on a point of law on 14 November 2023; it was not a fresh assessment of the child’s needs.
An assessment report dated 8 October 2020 recommended speech and language therapy, occupational therapy, psychology and physiotherapy, with services to begin that month. A service statement issued five days later specified development of an Individual Family Service Plan (IFSP), with a start date of November 2023. The judgment stressed that this date concerned beginning the IFSP process, not the start of actual therapy. At the November 2023 hearing, the judge said nothing had happened beyond an apparent phone call to E.L.’s mother.
The DAO had accepted the HSE’s account of waiting lists, staffing shortages and service reorganisation, and found no basis to provide services earlier. But the High Court held that the DAO had wrongly treated the statutory tests of “practicability” and the HSE’s annual budget as a single question of “resources.” It said the DAO should have investigated what urgent therapy could have been arranged earlier, including through other providers, and examined any budget implications separately.
The court also found the DAO’s reasons seriously deficient. It criticised the findings as unclear and unsupported by the material considered, and ruled that the DAO was wrong to place the onus of proof on the child’s family. The statutory appeal process was investigative, the judge said, and the circumstances called for the DAO to use its powers to question the HSE about earlier provision.
The judge concluded that E.L. had established multiple serious errors of law in the process and determination. The judgment did not order therapy or set a replacement service date. It noted that there had been no breach of an actual service obligation in the statement, and said the parties would be heard on the precise form of the order and on costs.