The High Court has refused a mother and son’s application for judicial review of an HSE review that found the boy did not meet the Disability Act’s definition of disability. The court dismissed the application but left consequential matters to be heard; it did not decide whether the HSE has a general duty to review assessment reports.
The boy, identified in the judgment as J.H., had been found to have a qualifying disability in an assessment report issued in November 2019. The report recorded that it should be reviewed in November 2020 “on request”. After the family sought a review, an occupational therapist assessed him in July 2021. The therapist reported improvements in fine motor skills and independence in daily living, and found no major occupational therapy concerns.
In January 2022, the assessment officer concluded that the boy did not then meet the Act’s definition of disability. The officer’s report referred to the updated occupational therapy assessment. The family argued that the review failed to account for earlier reports, including a private assessment identifying autism spectrum disorder, and sought orders requiring a review and quashing the January decision.
Justice Siobhán Phelan said the case advanced two conflicting positions: that no review had taken place, and that the review’s decision was legally flawed. The court found that a review had occurred, including the updated occupational therapy assessment requested by the family.
The judge held that the review report did not have to meet the statutory requirements for an original assessment report. Read together, the original assessment and the review, along with the evidence available on reasonable inquiry, showed the basis for the decision and that relevant reports had been considered. The court’s role was not to decide whether it agreed with the assessment officer, but whether there was evidence capable of supporting the decision. Justice Phelan found that such evidence existed and that the high threshold for judicial intervention had not been met.
The court also said the family could challenge the finding of no disability through the complaints procedure under section 14 of the 2005 Act. That process could examine the evidence and, in specified circumstances, recommend a further assessment. The judge did not decide whether the HSE is legally required to carry out a first review of an assessment report, because a review had taken place in this case.