Supreme Court: Leave to appeal granted in case involving Complaints Officer’s power to direct services for disabled children

About this case:

• Citation:
  [2022] IESCDET 118
• Judgment:
  External link
• Court:
  Supreme Court

The High Court had previously held that an Complaints Officer and a Disability Appeals Officer may direct the delivery of services to children with special needs in an earlier timeframe than that contained in a service statement.

In its Determination, it was accepted that the matter involved issues of general public importance regarding the ability of Officers to alter the scope of services offered and the time of their delivery.

Further, the remedial nature of the Disability Act 2005 would be considered in the appeal, although the exact parameters of this issue would be determined during case management.

Background

A full background to the proceedings can be found in Irish Legal News’ case report on the High Court decision.

In summary, disabled children are provided with assessment reports under the Disability Act 2005. Often, these assessment reports provide a timeline for services which are significantly delayed. Parents are entitled to make a complaint about the services or timeline to a Complaints Officer, with a right of appeal to a Disability Appeals Officer for services delivered by the HSE.

In the present case, an assessment report issued to a child in January 2020 following an application in June 2018. The report confirmed that a number of services would be provided to the child beginning in March 2023. A statutory complaint was lodged by the mother and her complaint was not upheld.

The matter was appealed to the Disability Appeals Officer who confirmed the Complaints Officer’s decision. As part of the appeal, the Appeals Officer determined that a Complaints Officer did not have the power to make provision for the delivery of services earlier than outlined in a service statement.

The mother brought judicial review proceedings against the decision. The High Court determined that, under the 2005 Act, a Complaints Officer had the jurisdiction to direct the provision of services earlier than in a service statement.

In an application for a leapfrog appeal to the Supreme Court, the HSE claimed that the High Court erred in its interpretation of the 2005 Act. It was claimed that Complaints Officers were given power “to usurp the initial assessment report and the role of the liaison officers”. Instead, it was claimed that the legislation only permitted recommendations for amendments to a service statement.

It was also contended that the trial judge relied incorrectly on JF v HSE [2018] IEHC 294 as this case related to the timeliness for the completion of assessment reports.

Supreme Court

In a Determination delivered on 28 October 2022, the court granted leave for the leapfrog appeal. It was accepted by the parties that issues of general public importance were raised in the appeal and it was noted that the outcome would affect a large number of individuals. The court observed that there were 20 other cases which were awaiting confirmation on the issues raised in the appeal.

The court also determined that the remedial nature of the 2005 Act would be considered in the appeal. In particular, the court would examine “the extent to which the remedial natural of the 2005 Act impacts the interpretation of the scope of jurisdiction of both the Complaints Officer and the Disability Appeals Officer”. However, this point of appeal would be clarified during case management.

It was held that the issues in the case were “relatively net points” which needed clarification. The courts had not yet considered the specific issues in the appeal and, accordingly, the appeal met the “exceptional circumstances” criterion for an immediate appeal to the Supreme Court.

The court determined that submissions would be made on the following two questions:

1. Whether under the Disability Act 2005, as amended, where an appeal is taken following initial assessment, does the officer reviewing the initial recommendation, the Complaints Officer and, following on, the Disability Appeals Officer, have legal power to alter both the nature of the services to be offered and the time at which such are to commence?
2. What is the proper approach to construing a social welfare statute and the degree to which plain words may be interpreted in the light of the purpose of the legislation?

Conclusion

The court granted leave to appeal directly to the Supreme Court

N v. Harraghy [2022] IESCDET 118