Court of Appeal rules child without disability finding was not entitled to service statement

The Court of Appeal has ruled that a child assessed as having no disability under the Disability Act 2005 was not entitled to a service statement, despite the assessment identifying health needs and recommending services.

The judgment, delivered by Ms Justice Ní Raifeartaigh on 1 April 2021, answered a question referred by the Circuit Court in the negative. The court held that section 11(2) of the Act must be read with the rest of the statutory scheme: the relevant determination of appropriate services relates to an applicant found to have a disability and needs occasioned by that disability.

The child’s assessment report said she did not meet the Act’s definition of disability, but identified a need for primary care psychology, speech and language therapy, and occupational therapy. The HSE did not prepare a service statement. The child’s applicants sought to enforce a recommendation by a statutory complaints officer that a statement be issued if the child was entitled to one.

The applicants argued that section 11(2), read on its own terms, required a service statement whenever an assessment report determined that health or education services were appropriate. The HSE argued that the entitlement applied only where the assessment also found a disability. The Court of Appeal agreed with the HSE’s interpretation, reading the provisions on assessment reports and service statements as parts of a single process.

The court stressed that a service statement specifies services to be provided and the timeframes for them, and connects to statutory complaint, appeal and enforcement procedures. Its ruling addressed entitlement to a statement under the Act; it did not determine whether the child should receive the identified services through other routes.

On costs, the court’s provisional view was that there should be no order. The parties were given 14 days to apply for a brief further hearing to argue for a different costs order. The judgment records that Costello and Pilkington JJ. agreed with the decision and provisional costs ruling.