The Court of Appeal has ruled that the Health Service Executive must ask the National Council for Special Education to nominate an expert when an assessment officer considers that a child may need an education service during a disability assessment.
The judgment, delivered by Ms Justice Donnelly on 27 October 2021, allowed an appeal by C.M., a minor suing through his mother and next friend, SM. The court overturned a High Court ruling that section 8(3) of the Disability Act 2005 did not cover children and that section 8(9) provided the sole referral route for them.
The appeal concerned how the Disability Act interacts with the Education for Persons with Special Educational Needs Act 2004. C.M., then aged seven, had Autism Spectrum Disorder according to reports exhibited in the case. His mother said his assessment report was incomplete because the assessment officer had not addressed his educational needs or referred them to the Council. It was accepted that the extent of his disability showed an educational need. The legal question was whether that need had to be assessed under the Disability Act or could only be assessed under the EPSEN Act, relevant provisions of which had not been commenced.
The Court of Appeal held that “applicant” in section 8(3) includes both adults and children. Where an assessment officer considers there may be a need for an education service, that section requires the officer to ask the Council to nominate a suitably qualified person to assist with the assessment.
The court treated section 8(9) as addressing a later stage: it applies where an assessment has identified a child’s need for an education service, and provides for referral into the relevant EPSEN Act process. The judgment said the two provisions therefore address different points in the process. It also rejected the argument that applying section 8(3) to children would necessarily duplicate assessments, noting that the EPSEN Act requires relevant earlier assessments to be taken into account.
The ruling does not establish an entitlement for children to an education service statement under the Disability Act. The judgment records that section 11(6) excludes education-service provisions from a service statement where its subject is a child. Nor did the court settle the final orders or costs: it proposed hearing counsel further on both matters.