The High Court refused most of the relief sought in a judicial review over a child’s disability assessment, but declared that the Health Service Executive breached its statutory reporting duty for 2015 to 2019.
Mr Justice Barr delivered the judgment electronically on 30 July 2020. The case was one of three test cases about the operation of the Disability Act 2005. The court said it would receive submissions on the precise terms of the order; the judgment does not set out a final form of that order.
The applicant, identified as CM and suing through his mother and next friend, SM, was born in March 2014. An assessment application was lodged on his behalf in February 2017. The first assessment report and service statement were followed by redrafted versions in February 2019, after judicial review proceedings had begun.
The court found that the reports and statements had been issued outside the statutory time limits. However, it said the recommended referral to an Early Intervention Team had already been made, so the delay had not prejudiced the applicant in that respect. It also held that the February 2019 service statement was not defective because it provided for a referral to that team, and found that it had been issued by a competent person despite the liaison officer post being vacant.
The judgment said the applicant was still awaiting access to the identified services as of November 2019. It noted that the court did not know whether he had since been assessed or begun receiving services, and said the Covid-19 pandemic may have caused further delay. The court held that waiting-list delays did not, by themselves, make the service statement defective.
On the broader legal issues, the court found that the statutory complaints process did not bar these judicial review proceedings, given the complexity of the legal questions and the claim for damages. But it rejected a request to declare that process unfit for purpose, citing evidence that complaints were being dealt with promptly at the time.
The court also rejected the challenge to the HSE’s regional ordering of assessments. It held that chronological processing within regions complied with the law, considering the practical need to assess children in home and school settings.
On referrals for children’s educational needs, the court interpreted section 8(9) as the statutory referral route, rather than section 8(3). It acknowledged that because relevant provisions of the Education for Persons with Special Educational Needs Act 2004 had not been commenced, children lacked a statutory pathway for assessment of those needs by the National Council for Special Education.
The HSE admitted it had not submitted section 13 reports to the Minister for Health from 2015 onward. The court declared this a breach of duty for 2015 to 2019 and said the HSE could not disregard the obligation because compliance was difficult.