The High Court has ordered the Health Service Executive (HSE) to process a complaint about delays in a child’s assessment of need within eight weeks of the order. The HSE consented to the order and agreed to pay the applicant’s costs, to be adjudicated if the parties cannot agree them.
In a judgment delivered on 19 April 2024, Ms Justice Hyland said the case concerned a complaint made by KR on behalf of her child, LR, under the Disability Act 2005. The complaint alleged that the assessment of need had not been commenced or completed within the required time. The judgment preserves the applicants’ anonymisation.
The assessment application was made on 14 February 2023. The court said it should have been commenced by 14 May and completed by 14 August, subject to exceptional circumstances. The complaint was made to the HSE on 15 August. After the applicants’ solicitor sent a pre-litigation letter in November, the HSE replied that the complaint would not be processed for a further seven months.
The applicants sought judicial review and an order compelling the HSE to process the complaint within eight weeks. Leave to bring the case was granted on 29 January 2024. The HSE did not file a statement of opposition. After leave was granted, the parties agreed the terms of the proposed order.
Because this was judicial review, Hyland said the court had to satisfy itself that making even a consent order was a lawful exercise of its supervisory role. She considered the statutory complaints process and the earlier High Court decision in J.F. v Health Service Executive, which established that complaints must be determined within a reasonable period proportionate to the statutory timelines for assessments.
An HSE senior manager’s affidavit described a substantial backlog: as of 13 March 2024, 1,177 complaints had not been assigned to a complaints officer. The affidavit attributed delays to increased complaint numbers, staffing pressures and more complex cases. It said the average time to complete a complaint had risen from 33 days in 2019 to 172 days in 2023.
Hyland criticised the HSE’s lack of a proposal to address the underlying problem, saying expedited settlements in cases brought by litigants could incentivise further proceedings and divert court resources. She nevertheless said the child was entitled to have the complaint dealt with lawfully and that the HSE was meeting its obligation in this case through the consent order. She found the order lawful and made it.