The High Court has refused an application seeking to compel the Health Service Executive (HSE) to carry out further reviews of a child’s assessment of need under the Disability Act 2005.
In a judgment delivered on 6 March 2023, Ms Justice Siobhán Phelan held that the Act does not impose a statutory obligation on the HSE to conduct a second or subsequent review of an assessment. She refused the requested orders of mandamus and declaratory relief and dismissed the judicial review application. She did not decide whether there is an enforceable obligation to carry out a first review.
The child, identified in the judgment as A.B., was diagnosed with Autism Spectrum Disorder. His mother, acting as his next friend, applied for an assessment in March 2018. The assessment report was completed in August 2019, and a review report issued in September 2020. The HSE continued to review the child’s service statements, which set out services to be provided, but declined a further review of the assessment itself.
The family sought another assessment review in 2021, referring to changed circumstances and requesting new assessments for dysgraphia and dyspraxia. The HSE’s position was that a review had already taken place and that a new application for assessment was the appropriate route if there were new health concerns. The family began judicial review proceedings in January 2022, seeking orders requiring further assessment reviews.
Justice Phelan distinguished assessment reports from service statements. An assessment report identifies needs and services considered appropriate, while a service statement records services that will be provided, taking account of practical and resource constraints. The 2007 Regulations require service statements to be reviewed at least annually. The legislation does not set out a comparable ongoing review requirement for assessment reports.
The judge found no statutory duty to produce a new assessment report after a review, which could trigger another review date and an automatic cycle. She said the Act instead provides for a further application for assessment where circumstances change. The absence of a remedy for failure to carry out repeated assessment reviews in the Act’s complaints system also weighed against finding an enforceable duty to conduct them.
The judgment leaves open whether the HSE must carry out a first review within a reasonable time. Justice Phelan said that question was not necessary to decide because a review had taken place in this case. She noted that the issue would need to be clarified in a case where it directly arose.