The Supreme Court has ruled that it has jurisdiction to hear an appeal concerning a consultative case stated, even though the Circuit Court judge who referred the question had retired. The ruling addresses a preliminary jurisdiction issue; it does not decide whether a child assessed under the Disability Act 2005 is entitled to a service statement from the Health Service Executive (HSE).
The case began after ELG, a minor suing through her mother and next friend SG, was assessed under the 2005 Act. The HSE’s March 2018 summary report said it believed ELG did not have a disability, but referred her for further psychological and occupational therapy assessment. After the HSE declined to issue a service statement, ELG’s mother pursued the Act’s redress process.
On 28 February 2020, Circuit Court Judge Linnane agreed to refer a legal question to the Court of Appeal. It asked whether an applicant whose assessment report finds no disability, but identifies health needs and a need for health services, is entitled to a service statement under section 11 of the Act. The Court of Appeal answered no on 1 April 2021. The Circuit Court judge retired on 15 April, before a final answer could return to her to decide the underlying case. The Supreme Court granted leave to appeal on 21 July 2021.
The Supreme Court considered whether the retirement removed its power to hear the appeal. Justice Gerard Hogan, whose judgment was delivered on 20 December 2021, said a consultative case stated generally depends on the referring judge remaining in office to make the final decision after receiving the higher court’s answer. He considered that the earlier decision in Cork County Council v Commissioners of Public Works meant a higher court would generally lack jurisdiction if the referring judge left office before it delivered judgment.
Here, however, the Court of Appeal had delivered its decision while Judge Linnane was still in office. That decision was therefore a valid and binding appellate ruling. The Supreme Court held that the Constitution’s provision for appeals to it, Article 34.5.3, allowed it to review that ruling after granting leave on grounds of general public importance. Hogan J described the circumstances as a narrow and unusual exception to the general rule.
The Court’s decision is limited to jurisdiction. It does not resolve the section 11 question or the dispute over ELG’s entitlement to a service statement. The judgment says the case will have to return for a fresh hearing before a different Circuit Court judge. The HSE did not propose to seek costs, and the Court of Appeal had made no order as to costs.