The High Court has refused two judicial review challenges concerning the assessment of educational needs for children with disabilities, finding that proceedings against the National Council for Special Education were started too late.
The cases were brought on behalf of two minor girls, identified as T.G.O’R and A.B. Both challenged decisions by the NCSE to nominate their school principals to assist Health Service Executive assessment officers under the Disability Act 2005. Their families had sought the involvement of educational psychologists.
Ms Justice Siobhán Phelan ruled on 27 March that both challenges to the NCSE nominations were outside the three-month judicial review time limit and that no sufficient reason had been established to extend it.
The judge nevertheless set out the respective legal responsibilities of the bodies involved. She held that the HSE assessment officer has the sole statutory duty to conduct the Assessment of Need to the required “gold standard”, meaning the assessment must identify needs without regard to the cost or availability of services.
The NCSE has a narrower role. Its task is to nominate a person with appropriate expertise to assist the HSE. A teacher or principal can fulfil that role in an appropriate case, but the NCSE must retain discretion and consider each child individually rather than automatically selecting school staff in every case.
The court said a teacher who provides information about a child does not thereby carry out the statutory educational assessment. If input from an educational psychologist is needed to complete a proper assessment, responsibility for obtaining that expertise ultimately rests with the HSE assessment officer.
The court also noted that both children were entitled to seek new Assessments of Need and that statutory complaint procedures were available. The applicants had not first pursued those routes with the HSE.
No finding was made on whether the individual NCSE nominations were themselves unlawful because those challenges were out of time. All relief sought in both cases was refused.