The Supreme Court has ruled that a child assessed as having health needs but not a disability under the Disability Act 2005 was not entitled to a service statement under the Act’s statutory scheme.
The case concerned ELG, a six-year-old girl who sued through her mother and next friend, SG. Her mother asked the HSE to assess her needs in October 2017, believing she might have a disability. The assessment found that she did not meet the Act’s definition of disability, but identified health and education needs and recommended referrals to primary care psychology, speech and language therapy, and occupational therapy. The judgment said ELG was receiving those services and that the appeal would have no immediate effect on them.
The dispute arose after delays in the assessment process. A statutory complaints officer upheld a complaint and recommended deadlines for the assessment and related reports, including that a service statement should issue if ELG was entitled to one. The appellants then sought Circuit Court orders to enforce those recommendations. The parties agreed that the issue for the courts was whether section 11(2) required the HSE to prepare a service statement when an assessment found no disability but identified health needs and services.
The Court of Appeal answered that question in the negative. The Supreme Court considered the appellants’ appeal from that ruling, focusing on statutory interpretation. The appellants argued that section 11(2) required a service statement whenever an assessment report identified appropriate services. The HSE maintained that the Act’s redress and enforcement mechanisms were for people found to have a disability as defined by the legislation.
In a judgment delivered by Baker J. on 11 March 2022, the Supreme Court agreed with the Court of Appeal. It read section 11(2) in the context of the Act’s definitions and the assessment report requirements in section 8(7). The Court concluded that the statutory process first requires a finding of disability; only then does the scheme provide for a statement of needs and services and access to the linked redress and enforcement mechanisms. Recommendations recorded for ELG, who had not been found to have a disability, did not constitute the statutory determinations needed to trigger a service statement.
The Court answered the case stated in the negative. Its ruling addressed entitlement under the Act; it did not direct the HSE to stop the services ELG was receiving.