Two children with suspected disabilities have won test appeals with significant implications for the HSE’s obligations to assess the educational needs of such children.
Both appeals concerned the operation of the statutory process for assessment of needs for disabled persons and were taken after the High Court rejected the children’s core claims.
In the Court of Appeal (COA) judgment on Wednesday on the first appeal, by a seven year old boy, Ms Justice Aileen Donnelly said, “in an ideal world”, children with disabilities would be able to have their health and educational needs assessed, and get services to meet those needs, “in a timely manner”.
The Oireachtas legislated in 2004, through the Education for Persons with Special Needs Act 2004 (Epsen Act), for such an ideal world, she said.
“As we do not live in such an ideal world, some 17 years later, crucial parts of the Epsen Act have not been commenced,” she noted.
The Oireachtas also legislated in 2005, through the Disability Act 2005, for the assessment of health needs and, at least in respect of adults, of educational needs and service provision, she said.
Sixteen years later, that Act has only been commenced in respect of children under the age of five, she noted.
She made the observations when rejecting the HSE’s argument that an assessment of the educational needs of the boy could only be carried out under the Epsen Act.
Feichín McDonagh SC, with Brendan Hennessy BL, instructed by John Rogers of Rogers Law, who represented both appellants, had said the boy, according to medical reports, presented with Autism Spectrum Disorder.
His mother claimed a needs assessment complied under the Disability Act was incomplete as it failed to address his educational needs.
Ms Justice Donnelly held that certain provisions of the 2005 Act regarding assessment of the educational needs of adults also apply to children with disabilities.
Based on those and other findings, the COA overturned a High Court finding that the relevant provision of the 2005 Act – section 8.3 – does not cover children.
Even if this boy’s needs were assessed under the 2005 Act, he would not be entitled to have a service statement in respect of those because the service statement provisions apply only to adults and the relevant provisions of the Epsen Act concerning students in school and children have not been commenced, the judge noted.
However, his mother considered an assessment would still be of benefit to him because she might be able to supply services to him through her own resources if possible.
In another significant judgment, the COA upheld arguments in the second appeal, by a now 10-year-old boy living in Cork, concerning how the HSE’s assessment obligations should be met.
That case arose because, while applications for needs assessments are processed chronologically by the HSE on a national basis, the actual assessments are then carried out in chronological order by an authority – known as the Community Health Organisation (CHO) – in the region where the applicant resides, and not chronologically on a national basis.
The result is that an applicant who has applied months or even years in advance of another applicant in a different CHO may be called for assessment long after the later applicant.
The boy’s mother applied for an assessment in April 2016 when he was aged just under five but he was still awaiting an assessment two and a half years later when his case was taken.
Waiting times in his CHO region are considerably longer than in other CHO regions, the court heard.
It was argued the relevant regulation under the Disability Act – regulation 5 – requires all statutory assessments of needs to be carried out chronologically on a national basis.
The COA agreed and said regulation 5 refers to the carrying out of the assessments in a chronological order based on “receipt” of applications. The priority must be accorded to applicants for assessment on a national, not a regional basis, it said.
A policy of carrying out assessments by region is not necessarily a breach of the legal duty so long as that is line with the priority accorded on a countrywide basis to applications pursuant to the date they were received by the HSE, it said.
Final orders will be made after the sides have considered the judgments.