Supreme Court: Disability Complaints Officer has jurisdiction recommend amendments in timelines for access to disability services

About this case:

• Citation:
  [2023] IESC 9
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Elizabeth Dunne

Delivering judgment in the case, Ms Justice Elizabeth Dunne held that a Complaints Officer and an Appeals Officer had wide powers under the Disability Act 2005 to investigate complaints regarding a service statement. Accordingly, the Appeals Officer was incorrect to conclude that he had no jurisdiction to make a determination on the dates for the provision of services contained in a service statement.

Background

In January 2020, a child received an assessment reports which outlined that he needed occupational therapy, psychology, physiotherapy and speech and language therapy as soon as possible. A service statement was provided in August 2020 which gave the date of March 2023 for the provision of the services.

On foot of the long delay in the provision of services, the applicant’s mother made a complaint to the Complaints Officer. The complaint was dismissed in August 2021 on the ground that the service statement was correct. 

The decision was appealed to the Appeals Officer who also dismissed the appeal. It was said that the Complaints Officer took account of all relevant matters, which included the “practicability of providing the services.” Importantly, the Appeals Officer determined that neither he nor the Complaints Officer had the jurisdiction to alter the service statement to provide services earlier than those outlined in the statement.

A statutory appeal was brought against this determination. The High Court determined that the Complaints Officer did in fact have jurisdiction under the 2005 Act to amend the service statement. A full summary of the High Court decision can be found here. 

In an appeal to the Supreme Court, the Appeals Officer and the HSE submitted that the High Court decision was incorrect. It was said that proper interpretation of the Officer’s powers under the 2005 Act was that any alteration or amendment of a service statement could only be made by the Liaison Officer (the first instance decision-maker).

The State parties submitted that a Complaints Officer only had the power to make recommendations for the amendment of a service statement and therefore had no power to directly amend a statement. Further, it was submitted that an Appeals Officer only had the power to “affirm, vary or set aside” recommendations of the Complaints Officer.

It was also submitted that the trial judge had placed excessive weight on the social and remedial nature of the 2005 Act which led to an erroneous interpretation of the Officer’s powers.

Supreme Court

Ms Justice Dunne began by outlining the scheme of the 2005 Act. She noted the remedial nature of the Act and that its objective was to “facilitate general access … to certain such services and employment and to promote equality and social inclusion …”

The court held that it had to be assumed that the Oireachtas did not intend that potentially qualifying applicants would be excluded from the scheme on narrow or technical grounds. However, the court also had to interpret the plain and ordinary meaning of the text and it was not permissible to draw a conclusion which was contrary to the legislation (see McDonagh v. Chief Appeals Officer & the Minister for Social Protection [2021] 1 ILRM 385; J.G.H. v. Residential Institutions Review Committee [2018] 3 I.R. 68).

The court then went on to outline the legislative powers of Liaison, Complaints and Appeals Officers under sections 11, 15 and 18 of the Act respectively. 

The court accepted that the trial judge was incorrect to hold that a Complaints Officer or an Appeals Officer could vary or amend a service statement. Instead, the 2005 Act stated that a Complaints Officer could only make a “recommendation” to amend, while the Appeals Officer could only make a “determination.”

However, the court noted that a failure by a Liaison Officer to act on a Complaint Officer’s recommendation was enforceable in the Circuit Court. As such, the functional effect of a recommendation/determination was to amend a service statement.

The court held that the real issue in the proceedings related to the powers of the Officers to make recommendations/determinations for the delivery of services in a statement.

The court noted that this was not a case which argued that the HSE had failed to allocate sufficient funding to the services or that there be a reallocation of funds to ensure that the child’s needs were met. In this regard, the court commented that the HSE did not have unlimited resources.

The court accepted that the moneys available for the provision of services was a factor to be considered when preparing a service statement pursuant to the Act. Further, on the issue of the practicability of providing services, it was a matter for the relevant body to identify the appropriate funding for services.

Ms Justice Dunne outlined how a Liaison Officer’s assessment was not a decision on the entitlement of an applicant to services. Instead, they were ascertaining whether services were available in a particular area to cater for the applicant. 

The Liaison Officer could not create extra places for an applicant and it may not always be possible to give a firm timeline to an applicant. Further, if there were no available places in a particular area, a Liaison Officer was limited to stating this fact (see CM (a minor) suing by his mother and next friend SM v. The HSE [2020] IEHC 406).

Conclusion

The court held that the Appeals Officer had taken an unduly narrow view of the jurisdiction of a Complaints Officer to make recommendations for the alteration of dates in a service statement. A Complaints Officer had the power to make recommendations in respect of the dates for the provision of services and these recommendations were to be acted on by the Liaison Officer. Accordingly, the appeal was dismissed.

JN and Anor. V. Harraghy [2023] IESC 9