The High Court dismissed a Health Service Executive appeal against a determination that Liam Gallahue was eligible for an Assessment of Need under the Disability Act 2005.
The appeal concerned the meaning of a commencement order that brought Part 2 of the Act into force on 1 June 2007 “in relation to persons under 5 years of age”. The HSE argued that a child had to be under five when an application was made. The Disability Appeals Officer (DAO) and Liam’s father, Roger Gallahue, argued that the relevant age was the child’s age on the commencement date.
The DAO had allowed an appeal against the HSE’s refusal of Liam’s application and recommended that an assessment be provided and completed within three months of the determination, issued on 12 June 2009. The HSE then appealed that decision under section 20 of the Act.
Delivering judgment on 8 December 2009, Mr Justice Michael Hanna held that the commencement order applied to children who were under five on 1 June 2007. He said the HSE’s interpretation would mean a child eligible on that date could lose eligibility the next day on turning five, despite no such loss of rights being stated in the Act or order.
The judge also said the Act created a right to an assessment and did not set a time limit for applying. The commencement order could not introduce a limit that the Act itself did not provide. HSE guidance notes could not change the law, and the HSE remained obliged to apply the Act as enacted.
The court dismissed the appeal, leaving the DAO’s determination in place. Its ruling addressed the statutory age-eligibility issue; the judgment did not itself order the HSE to complete the assessment. The three-month completion period was a recommendation in the DAO’s determination.