About this case:

• Citation:
  [2022] IEHC 407
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Marguerite Bolger

Delivering judgment in the case, Ms Justice Marguerite Bolger determined that an Appeals Officer erred by stating that he did not have jurisdiction to vary the date contained in a service statement. Further, it was held that the Appeals Officer did not properly consider matters contained in section 11(7) of the Disability Act 2005 in upholding the service statement in the case.

Background

The appellant was a special needs child whose mother applied for an assessment of needs in June 2018. In January 2020, an assessment report issued which determined that the appellant required occupational therapy, psychology, physiotherapy and speech and language therapy “as soon as possible”. In August 2020, a service statement issued from the HSE which identified March 2023 for the provision of support to the appellant.

The appellant’s mother submitted a complaint to the Complaints Officer in September 2020 which took issue with the start date of March 2023 for the provision of services. A report from the Complaints Officer in August 2021 rejected the complaint, stating that the contents of the service statement were correct and compliant with section 11(7) of the Disability Act 2005.

The decision was appealed to the Appeals Officer. The appellant criticised the Complaints Officer’s finding that the provision of services would result in a costs over-run under section 11(7)(e) of the Act. The Appeals Officer dismissed the appeal in November 2021.

The Appeals Officer’s determination stated that he had considered the documents furnished by the appellant and had asked the HSE to set out the current position regarding the possibility of providing services to the appellant within a reasonable period. The Appeals Officer also set out the reply he received from the HSE in October 2021, which outlined the waiting list and the HSE’s expectation that reforms would have a positive impact on the appellant’s access to services.

The Appeals Officer did not seek any further documents or information. His determination made little reference to the appellant’s submissions and “noted” that the service statement had taken account of the factors in section 11(7).

The Appeals Officer rejected the appellant’s position that a lack of resources was no defence to the complaint, stating that a Complaints Officer was obligated to consider resources when preparing a report. Further, a Complaints Officer was required to consider the practicality of providing services to the appellant (s.11(7)(d)) and the need to ensure that the services would not result in expenditure in excess of the approved allocation from the HSE for the year (s.11(7)(e)). This was done in this case, the Appeals Officer said.

Finally, it was stated that a Complaints Officer “did not have the prerogative to make provision for the delivery of services earlier than outlined in the Service Statement.” As such, it was held that the Appeals Officer did not have jurisdiction to make a determination on the complaint regarding the March 2023 date for services.

High Court

Ms Justice Bolger began by considering the legislative intent of the 2005 Act. It was noted that the Act was innovative insofar as it provided for a statutory complaints enforcement mechanism to remedy failure to provide services to meet the special needs of children (G v. HSE [2022] IESC 14). The court also drew a distinction between the assessment report and the service statement, with the report being “resource blind” and the statement being “practical and restrained by budgetary and other resources.”

The court also considered the process to be followed by the Appeals Officer. Under the Act, an Appeals Officer “shall make a determination in writing […] affirming, varying or setting aside the finding or recommendation concerned”. The Officer was also required to provide reasons for the decision.

The court rejected the respondent’s submission that the applicant should have challenged the decision by way of judicial review rather than the statutory appeals process. It was held that the issues of the Appeals Officer’s jurisdiction and the consideration of section 11(7) were “well within the four corners of the jurisdiction vested in the Appeals Officer” and therefore could be challenged in the statutory appeal (CTM v. HSE [2022] IEHC 131).

Ms Justice Bolger outlined that the Appeals Officer’s determination did not identify several key points, including, inter alia, how the Officer considered the factors in section 11(7) of the Act, the basis for holding that the Complaints Officer was obliged to consider available resources in preparing the report and why the Complaints/Appeals Officers did not have the power to make determinations on the provision for delivery of services earlier than in the service statement.

The court held that there was a wide scope of complaints that could be made about the contents of a service statement and that this included a right to complain about the date that services were to be provided. It followed that the Complaints Officer had the jurisdiction to address and determine such a complaint (see JF v. HSE [2018] IEHC 294). If it were otherwise, the Officers would not have jurisdiction to correct an error in a service statement date, the court said.

Finally, the court considered the Appeals Officer’s duty to consider matter set out in section 11(7). It was held that the HSE’s letter did not say anything about the possibility of the services exceeding the allocated expenditure for the year, which was noted to be €17 billion. It was the Appeals Officer’s responsibility to request correct information to consider all matter in section 11(7) and it would likely have been provided by the HSE if requested.

The court held that the Appeals Officer appeared to conflate the matter in section 11(7)(d) and (e) “into a single purported consideration”. However, these were two separate matters which required individual consideration. Further, the Officer’s finding that section 11(7) required consideration of “resources” was incorrect as there was no reference to “resources” in the section.

Conclusion

In light of these findings, the court was not satisfied that the Appeals Officer demonstrated how he considered the matters in section 11(7)(e). Although a detailed narrative was not required, there was a statutory obligation to demonstrate consideration of the issue. Accordingly, there was no basis in the determination which showed that the Officer had sufficient information to consider the factors in section 11(7).

The court therefore held that a Complaints Officer had jurisdiction to alter or vary the waiting times set out in a service statement and that the Appeals Officer did not properly comply with his statutory duty to consider section 11(7). The case was to be remitted to the Appeals Officer for fresh investigation.

J.N. v. Harraghy [2022] IEHC 407