The High Court has quashed assessment reports for two young children, ruling that the HSE’s preliminary assessment process did not meet the requirements of the Disability Act 2005 in their cases.
In a judgment delivered on 11 March 2022, Ms Justice Siobhán Phelan held that the Act required a full assessment of the nature and extent of a disability, the needs arising from it and the services appropriate to meet those needs. Where practicable, the assessment must consider the cause of the child’s restrictions through appropriate diagnostic assessment. The judge stressed that the Act does not require a definitive diagnosis in every case.
The children, identified in the judgment as C.T.M. and J.A., had assessments under the HSE’s Standard Operating Procedure, introduced nationally in January 2020. Each assessment involved a telephone discussion with a parent and an hour of observed play by a speech and language therapist and a physiotherapist. Neither included standardised autism diagnostic testing.
C.T.M.’s assessment report identified communication and learning restrictions and called for further assessment. It did not specify particular services, and the services statement identified no service beyond the child’s existing waiting-list position. J.A.’s report identified a referral to services for speech and language therapy, occupational therapy, physiotherapy and psychology; his mother’s affidavit described a private autism diagnosis. The judgment recorded local waiting times of 16 months for C.T.M.’s services and 36 months for J.A’s, as stated in the relevant documents.
The judge found that the assessment officers had erred in law by applying the HSE procedure, which treated diagnosis as unnecessary and allowed needs and services to be deferred to later assessment. She held that the reports were unlawful because the assessments did not determine whether the children’s restrictions arose from an enduring impairment as defined by the Act or fully identify their needs and appropriate services.
The HSE argued that the Act did not require diagnostic testing and that needs could be assessed without diagnosing an underlying condition. In J.A.’s case, it also argued that the statutory complaints process was an adequate alternative to judicial review. The court rejected that argument for the legal challenge brought: it held that the complaints officer’s powers did not extend to deciding whether the HSE’s interpretation of Part 2 of the Act was unlawful. A complaint about compliance with HIQA standards could fall within the statutory process.
The court ordered certiorari quashing C.T.M.’s report dated 1 February 2021 and J.A.’s report dated 20 April 2021. The judgment did not order particular services for either child. The judge said the applicants appeared prima facie entitled to costs; if the HSE sought a different costs order, it was directed to file written submissions within ten days, with the applicants then given ten days to respond.