Court of Appeal: No entitlement to apply for second review of an assessment report for disabled child

About this case:

• Citation:
  [2023] IECA 286
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Charles Meenan

Delivering judgment for the High Court, Mr Justice Charles Meenan found the legislation to be “perfectly clear”, and whilst finding some merit in the appellants’ submission that review of an assessment report on an ongoing basis would make better management and administrative sense, the Judge emphasised that “…the role of the court is to interpret the statutory provisions and not devise better management and administrative systems”.

Background

MB applied for an assessment report in respect of her autistic son, AB. The report was furnished by the respondent on 30 August 2019 and a service statement followed in September 2019.

A complaint was lodged in respect of non-compliance with the service statement, and an application was made to the Disability Complaints Officer. Subsequently, proceedings took place in the Circuit Court, resulting in an updated service statement being furnished on 30 July 2020.

The assessment report and service statement were reviewed in September and October 2020 respectively, and in September 2021, MB’s solicitors wrote to the respondent seeking a second review of the assessment report, requiring a focus on his dysgraphia and dyspraxia. 

Ultimately, the respondent took the view that the Disability Act 2005 and the Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007 (S.I. No. 263/2007) allowed for only one review of an assessment report, and that if AB’s circumstances had changed, a new assessment report application was necessitated.

MB (on behalf of AB) was granted leave to seek judicial review. The first relief sought was a declaration that pursuant to s.21 of the 2005 Act and Art.11 of S.I. 263, every assessment report, including assessment reports produced pursuant to a review, is subject to review within 12 months. MB also sought an order of mandamus compelling the respondent to complete a second review within 6 weeks. 

The High Court

Ms Justice Siobhán Phelan refused the reliefs sought, finding that the language of the statutory provisions made it clear that there was no ongoing duty of automatic and periodic review of the assessment of need. The High Court further directed that there be no order as to costs.

MB appealed the finding of the High Court and the order in respect of costs. 

The Court of Appeal

Mr Justice Meenan began by setting out the relevant provisions of the 2005 Act and S.I. 263, noting the judgment of Heather Hill v An Bord Pleanála [2022] 2 ILRM 313 which set out that the statutory words are the “first port of call in its interpretation” and that the Court must also have regard to the context of the section, the Act, the legal framework and the object of the legislation.

Finding that the High Court had taken the correct approach by considering the plain words of the legislation, the Court of Appeal also agreed with the trial judge that despite the respondent having completed second reviews of assessment reports in the past, “…Inconsistent practices do not retract from the fact that the question of entitlement as framed in these proceedings is one which falls to be determined as a matter of statutory interpretation.”

MB contended that the reference to “different periods” in s.21(a) of the 2005 Act indicated that there may be subsequent reviews following the first review of an assessment report. 

Mr Justice Meenan determined that the High Court had correctly rejected that interpretation, considering that s.9(8) provides that one who has previously made an application may make a further application if they believe there has been a material change of circumstances, further information has become available or a material mistake of fact has been identified in an assessment report.

The Court also considered the limitation imposed by s.9(7), which provides that where an assessment report has been furnished and the period for review has not expired, it is impermissible to apply for a further report. Mr Justice Meenan pointed out that “if the appellant’s interpretation is correct, it would mean that s. 9(8) could almost never be availed of, as the “assessment report” would be subject to repeated reviews so the time for carrying out the review would never expire. This would effectively render s. 9(8) redundant”.

Rejecting MB’s submission that s.9(8) would then operate where an application for an assessment report had been refused on grounds that there was no disability, the Court highlighted that this “would require a significant rewording of s.9(8)”. Proceeding to consider the provisions of S.I. No. 263/2007, Mr Justice Meenan considered that the regulations were “perfectly clear” in that the wording relating to the review of a service statement indicates reviews every 12 months, with no such wording pertaining to the review of an assessment report.

Turning to the issue of costs, the Court found that the proceedings before the High Court did not raise “any issue of great complexity or novelty” and agreed with the High Court that unlike the case of ELG v HSE [2022] IESC 14 relied upon by MB, MB was entitled to apply for a further assessment of needs and “it was not inevitable in the same way as in ELG that there would be a need for engagement of the kind which led to these proceedings”. 

Conclusion

The Court dismissed the appeal and indicated its provisional view that if the respondent were to seek its costs, an award of costs would be made against the appellant.

M.B. v Health Service Executive [2023] IECA 286