Court orders HSE to provide autism therapy services to minor under Disability Act 2005.

Record Number: 2020/003790

THE CIRCUIT COURT

L O‘ B (a minor suing by her mother and next friend C O’B)

and

Health Service Executive

Judgement of Judge Cormac Quinn dated 8th day of November 2021

Introduction: this is a matter which was originally brought by notice of motion returnable for 24 th November 2020 before Judge Linnane at Circuit Court 22. The infant Applicant is currently 7 years of age. By assessment report dated 21/3/2019 (when she was 4 years of age) the infant applicant was assessed on behalf of the HSE by an assessment officer and it was determined that she has a disability within the meaning of the Disability Act 2005 being autism spectrum disorder. In essence the Applicant is seeking an order from this Court directing that the infant applicant receive services of speech and language therapy, psychology and occupational therapy. The motion sought an order under section

22 of the Disability Act 2005 directing/compelling the respondent to implement in full, within six weeks or such other period as deemed appropriate by the court the recommendations of the disability complaints officer made on 4th September 2019:

(i) that L O'B’s service statement is amended and reissued immediately to reflect the date for service provision as outlined above.

(ii) That intervention is commenced in a realistic timeframe but no later than January 2020.

Because of the Covid 19 pandemic the matter was adjourned generally with liberty to re-enter. The matter has now been re-entered before me.

THE RELEVANT PROVISIONS OF THE DISABILITY ACT 2005 AND THE DISABILITY (ASSESSMENT OF NEEDS, SERVICE STATEMENTS AND REDRESS) REGULATIONS 2007. The long title of the act recites:

“An act to enable provision to be made for the assessment of health and education needs occasioned to persons with disabilities by their disabilities, to enable ministers of the government to make provision, consistent with the resources available to them and their obligations in relation to their allocation, for services to meet those needs, to provide for the preparation of plans by the appropriate ministers of government in relation to the provision of certain of those, and certain other services, to provide for appeals by those persons in relation to the non-provision of those services…”

Section 2 of the act provides a definition of disability:” disability”, in relation to a person, means a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the state or to participate in social or cultural life in the state by reason of an enduring physical, sensory, mental health or intellectual impairment.

Section 7 (2) provides that in the definition of “disability” in section 2, “substantial restriction” shall be construed for the purposes of this Part as meaning a restriction which-

(a) Is permanent or likely to be permanent, results in a significant difficulty in communication, learning or mobility or in significantly disordered cognitive processes, and

(b) Gives rise to the need for services to be provided continually to the person whether or not a child or, if the person is a child, to the need for services to be provided early in life to ameliorate the disability.

“service” means a service or facility of any kind provided by a public body which is available to or accessible by the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes-

(a) The use of any place or amenity owned, managed or controlled by a public body,

(b) The provision of information or an information resource or a scheme or an allowance or other benefit administered by a public body … (section 2 (1).

“service plan”, in relation to a specified body, means a service plan or other similar document approved by the Minister to whom that body is required by an enactment to submit such plan or document (section 5 (1).

Part 2 of the act is entitled “assessment of need, service statements and redress”. “Assessment” means an assessment undertaken or arranged by the Executive to determine, in respect of a person with the disability, the health and education needs (if any) occasioned by the disability and the health services or education services (if any) required to meet those needs.

Section 9 deals with an application for assessment and provides:

“9(1) where-

(a) a person is of the opinion that he or she may have a disability, or

(b) a specified person is of that opinion in relation to another person and the person considers that by reason of the nature of that other person’s disability or age he or she is likely to be unable to form such an opinion, the person may apply to the Executive for an assessment or for an assessment in relation to a specific need or particular service identified by him or her.

(5) where an application under subsection (1) or a request under subsection (4) is made, the Executive shall cause an assessment of the applicant to be commenced within three months of the date of the receipt of the application or request and to be completed without undue delay.”

Section 8 deals with assessment officers and the preparation of assessment reports and provides:

8 (1) the executive shall authorise such and so many of its employees as it considers appropriate (referred to in this act as “assessment officers”) to perform the functions conferred on assessment officers by this part and every person so appointed shall hold office as an assessment officer for such period as the executive may determine.

(3) an assessment officer shall carry out assessments of applicants or arrange for their carrying out by other employees of the executive or by other persons with appropriate experience.

(4) an assessment officer shall be independent in the performance of his or her functions.

(5) an assessment under this section shall be carried out without regard to the cost of, or the capacity to provide, any service identified in the assessment as being appropriate to meet the needs of the applicant concerned.

(6) where an assessment officer carries out or arranges for the carrying out of an assessment under this part, he or she shall prepare a report in writing of the results of the assessment and shall furnish a copy of the report to the applicant, the executive, and, if appropriate, a person referred to in section 9 (2) and the chief executive officer of the council.

(7) report under subsection (6) (referred to in this act as an” assessment report”) shall set out the findings of the assessment officer concerned together with determinations in relation to the following-(a) whether the applicant has a disability-

(i) a statement of the nature and extent of the disability.

(ii) a statement of the health and education needs (if any) occasioned to the person by the disability,

(iii) a statement of the services considered appropriate by the person or persons referred to in subsection (2) to meet the needs of the applicant and the period of time ideally required by the person or persons for the provision of those services and the author of such provision,

(iv) a statement of the period within which a review of the assessment should be carried out.”

Article 9 of the 2007 regulations states that the executive shall commence the assessment process as soon as possible after the complete application form has been received but not later than three months after that date. Article 10 of the regulations provides that the executive shall complete the assessment and forward the assessment report to the liaison officer within a further three months from the date on which the assessment commenced, save for in exceptional circumstances, when the assessment will be completed without undue delay.

Section 11 provides:

“11 (1) the executive shall authorise such and so many employees of the executive as it considers appropriate (referred to in this act as ”liaison officers”) to perform the functions conferred on liaison officers by this part.

(2) where an assessment report is furnished to the executive and the report includes a determination that the provision of health services or education services or both is or are appropriate for the applicant concerned, he or she shall arrange for the preparation by a liaison officer of a statement (in this act referred to as a ”service statement”) specifying the health services or education services or both which will be provided by the applicant by or on behalf of the executive or an education service provider, as appropriate, and the period of time within which such services will be provided.

(7) without prejudice to the generality of subsection (2) , in preparing the service statement the liaison officer concerned shall have regard to the following-

(a) the assessment report concerned,

(b) the eligibility of the applicant for services under the Health Acts 1947 to 2004,

(c) approved standards and codes of practice (if any) in the state in relation to the services identified in the assessment report,

(a) the practicability of providing the services identified in the assessment report,

(e) in the case of the service to be provided by or on behalf of of the executive, the need to ensure that the provision of the services would not result in any expenditure in excess of the amount allocated to implement the approved service plan of the executive for the relevant financial year.”

Article 18 of the regulations provides that the service statement shall be written in a clear and easily understood manner and shall specify: (a) the health services which will be provided to the applicant; (b) the location(s) where the health service will be provided; (c) the timeframe for the provision of the health service; (d) the date from which the statement will take effect; (e) the date for review of the provision of services specified in the service statement; and (f) any other information that the liaison officer considers to be appropriate, including the name of any other public body…

Article 19 provides that the service statement shall be completed within one month following receipt of the assessment report by the liaison officer.

The distinction between an “assessment report” and a ”service statement” has been set out in G (a Minor suing by his father and next friend SG) v Health Service Executive (judgement of Court of Appeal of 1st April 2021) as that an assessment report looks purely to the need of the child and the services required without regard to the constraints posed by limited resources and was described as ”resource blind”. The service statement, in contrast, which comes later in the process, fully takes account of the practical realities caused by limited resources.

Sections 14 and 15 deal with complaints:

“14 (1) an applicant may, either by himself or herself or to a person referred to in section 9 (2), make a complaint to the executive in relation to one or more of the following:

(e) the fact, if it be the case, that the executive or the education service provider, as the case may be, failed to provide or to fully provide a service specified in the service statement.”

Section 15 provides for the executive to authorise complaints officers to deal with complaints and provides:

15 (8) report of the Complaints Officer may contain one or more of the following:

(f) if the report contains a finding that the executive or an education service provider failed to provide or to fully provide a service specified in the service statement, a recommendation that the service be provided in full by the executive or the education service provider or both as may be appropriate within the period specified in the recommendation.

Section 16 provides for the appointment of an appeals officer and provides that an applicant may appeal to the appeals officer against a finding or recommendation under section 15 (8) or against the non-implementation by the executive or a head of an education service provider of a recommendation of a complaints officer and, if he or she does appeal, the appeals officer shall give the parties an opportunity to be heard by him or her and to present to him or her any evidence relevant to the appeal.

Section 20 provides for an appeal on a point of law to the High Court.

Section 22 provides that the complaint officers finding and recommendation may be enforced by way of an application to the Circuit Court in the event that the recommendation is not implemented within three months:

22 (1) (a) if the executive or the head of the education service provider concerned fails-

(iii) to implement in full a recommendation of a complaints officer, within three months from the date on which the determination, resolution or recommendation is communicated to him or her… Then, the applicant concerned,… may apply to the Circuit Court… For an order directing him or her to implement the determination or recommendation in accordance with its terms or to give effect to the resolution, as the case may be.

ASSESSMENT REPORT IN RELATION TO THE APPLICANT: the applicant was assessed in accordance with the legislation by report dated 21 March 2019 and was found to have a disability as defined by the Disability Act 2005. The assessment states, “L meets DSM-V criteria for autism spectrum disorder (ASD), with evidence of difficulties across the areas of social communication and social interaction, play, emotions and behaviour, and sensory processing needs.” The relevant interventions/services required were assessed as speech and language therapy, psychology, occupational therapy and preschool support, all of which were delineated in a timescale of “ASAP”(Grounding affidavit par 10- 12)

SERVICE STATEMENT: the service statement dated 26th March 2019 did not include a date for provision of services nor a review of those services (Grounding affidavit page 14 – 15).

COMPLAINT ON BEHALF OF THE APPLICANT TO THE COMPLAINTS OFFICER THAT SERVICES WERE NOT PROVIDED: The applicant’s next friend instructed her solicitor in August 2019 that the said services were not being provided. By letter dated 19 August 2019 the applicant’s solicitor made a complaint to the complaints officer.

FINDINGS AND RECOMMENDATION OF COMPLAINTS OFFICER: The Disability Complaints officer reported on 4 September 2019 and upheld the complaint. The report of the complaints officer indicated that “the complainant seeks the implementation of the service statement” and referred to the service statement issued on 26 March 2019 which outlined the following services to be provided by Beechpark services and it was expected that the applicant would be seen in January 2020 for intervention. The complaints officer made a finding that the applicant’s needs included psychology, occupational therapy and speech and language therapy and that her needs “are currently not being met” and the complaint was upheld. The Complaints officer made a recommendation having regard to section 11 (7) (e) of the Disability act 2005 (expenditure) and recommended that the service statement be amended and reissued immediately to reflect the date for service provision as outlined and that intervention is commenced in a realistic timeframe but no later than January 2020.

On foot of the non-complied service statement proceedings were brought before the Circuit Court in February 2020 and an order was made on consent in respect of the impugned service statement. An amended service statement was issued on the 12th of February 2020 which provided a start date of June 2020 for services but did not comply with the disability complaints officer’s recommendation that the applicant receive intervention no later than January 2020 (grounding affidavit paragraph 10/11). At the date of swearing of the grounding affidavit (25th of June 2020) the applicant had not received any of the services specified in the service statement to wit, psychology, occupational therapy, speech and language therapy (other than two speech and language sessions).

An amended service statement was issued on 30 December 2019 (grounding affidavit page 23).

SUBMISSIONS ON BEHALF OF THE APPLICANT:

Mr Shortall S.C. submitted that there was no dispute in relation to which services were required by the applicant. He referred to the findings of the Disability Complaints Officer, the provisions of the legislation and the jurisdiction of the court as set out at section 22 of the act to implement in full a recommendation of a complaints officer within three months from the date on which the recommendation is communicated and that the applicant may apply to the Circuit Court for an order directing the implementation of the recommendation in accordance with its terms.

Mr Shortall submitted that the respondent had not appealed and had not judicially reviewed the finding. He referred to the Constitutional rights to education and the rights of children and submitted that the legislation was in the category of a remedial statute and that a purposeful interpretation was appropriate. He submitted that the application should not be defeated on technical grounds and he referred to the expression in the case of JF of “Shall”. He submitted that a subsequent service statement is not relevant to this issue and that the submissions by the respondent pushed the argument into a circle.

Mr Shortall submitted that the recommendation was that the services should be provided. He submitted that nobody was saying the services; speech and language therapy, psychological and occupational therapy were not required. He indicated that the issue was, can an updated service statement defeat a determination. He indicated that early intervention was crucial and that the respondent did not provide the services recommended and he submitted that the order sought would not refer to where the services were to be provided and that section 15 does not say anything about the geographical location of services.

He referred to section 22…”the provision of a service”. He said that the court was being asked to give the HSE the benefit of their delay. He submitted that if the HSE because of the passage of time produces another service statement with a different start date that this does not defeat the determination of the disability appeals officer and that there was no authority for this. He submitted that the Disability Act was specifically set up to enforce the Disability Complaints Officer’s recommendation. He indicated that if the court makes the order it would be two years after the Disability Complaints officers recommendation.

The applicant also relies on the grounding affidavit of C O’B, the supplemental affidavit of C O’B and written submissions.

SUBMISSIONS ON BEHALF OF THE RESPONDENT:

Mr Leahy B.L. referred to the legislation and submitted that the parameters given to the court under section 22 were very narrow and submitted that the recommendation made by the complaints officer will be informed by the position at that time. He referred to the new service statements and indicated that the respondent was obliged to revisit the service statement every year. He referred to the case of G v HSE and paragraphs 52, 53 and 55 thereof. He submitted that the starting point is applying the plain meaning of the legislation and referred to the affidavit of Mr Jefferies on behalf of the respondent and referred to paragraph 10, 12, and 15 and 16. He referred to the revised service statements and submitted that the court should not be asked to make an order in relation to a historic recommendation. He submitted that on the basis of the affidavit of Mr Jefferies the court should exercise its discretion not to make the order sought. Mr Leahy submitted that the intervention was to take place in Beechpark and that the applicant’s mother had agreed to the services being provided outside Beechpark. He submitted that a placement at Beechpark was no longer appropriate and therefore there was no enforcement order in place to deal with the matter. The respondent also relies on the affidavit of Padraig Doherty.

STATUTORY INTERPRETATION OF THE DISABILITY ACT 2005 AND THE DISABILITY (ASSESSMENT OF NEEDS, SERVICE STATEMENTS AND REDRESS) REGULATIONS 2007:

In Health Service Executive v Teresa Dykes and Roger Gallahue (judgement of Mr Justice Michael Hannah dated 8 December 2009) the High Court indicated “the overall function of the HSE under the act is to give effect to the act and to provide the services as described therein, including the important service of an assessment of need”. The court in dealing with the issue of statutory interpretation stated,

“under the normal cannons of statutory interpretation, where the words of the statute are clear it is not permitted to speculate as to what the legislator might have intended. Where the phrasing is unclear or ambiguous and therefore open to interpretation, a purposive approach may be taken. If the meaning of the words used in the commencement order are not clear or plain upon a literal reading of those words, a purposive approach to the interpretation of the commencement order may be necessary.” The court quoted Howard v Commissioners of Public Works (1994) 1 IR 101:

“the tribunal that has to construe an act of a legislature, or indeed any other document, has to determine the intention as expressed by the words used and in order to understand these words it is natural to enquire what is the subject matter with respect to which they are used on the object in view”. The court referred to DB v the Minister for Health and Children (unreported Supreme Court 26th of March 2003 McGuinness J):

“in the interpretation of statutes the starting point should be the literal approach-the plain ordinary meaning of the words used. The purposive approach may also be of considerable assistance, frequently, but not invariably, where the literal approach leads to ambiguity, lack of clarity, selfcontradiction, or even absurdity. In the interpretation of a section it is also necessary to consider the act as a whole.” McGuinness J quoted with approval the data of Keane J in Mulcahy v Minister for the Marine (unreported High Court Keane J 4th of November 1994):

“while the court is not, in the absence of a constitutional challenge, entitled to do violence to the plain language of an enactment in order to avoid an unjust or anomalous consequence, that does not preclude the court from departing from the literal construction of an enactment and adopting in its place a theological or purposive approach, if that would more faithfully reflect the true legislative intention gathered from the act as a whole.”

In HSE v Dykes and Gallahue the High Court stated,

“it would therefore seem, in light of the authorities discussed above, that in embarking on statutory interpretation, the court is entitled to look at the enactment as a whole and to look at what was envisaged or hoped to be achieved by the act, in this case the Disability Act 2005.”

In G (a minor suing by her father and next friend SG) v HSE (judgement of Ms Justice Ni Raifeartaigh of 1st of April 2021) the Court of Appeal in referring to service statements as set out at section 11 (2) of the Disability Act 2005 indicated,

“A service statement is a document created following an assessment of the child’s needs and sets out the health services to be provided and a timeframe for provision of those services. Where those timeframes are breached, the act provides for an elaborate statutory complaints and redress process and ultimately judicial enforcement. The right of personal enforcement is a significant departure from the general scheme for delivery of health services in Ireland which is not provided for in the Health Act 2004” (par 2). The Court of Appeal accepted that the Disability Act, 2005 is a remedial statute.

THE IMPORTANCE OF EARLY INTERVENTION/REOSURCES:

In JF v HSE (2018) IEHC 294 Faherty J describes the complaint redress enforcement provisions as an “integral statutory scheme of redress for complaints about breaches of those timelines, together with an inbuilt mechanism for judicial enforcement.”

In JF, AF v HSE (judgement of Justice Faherty of 15 May 2018 High Court) the court referred to the importance of early intervention where autism is diagnosed and quoted O’C v Minister for Education

(2007) IEHC 170 were Peart J, in a case where facts predated the statutory timeframe set out in the 2005 act held as follows:

“that usually extended at that state to completing a diagnosis within a timeframe which was reasonable given his age and the recognised importance of early intervention should a positive diagnosis be made in due course. The fact the diagnosis was not completed until the end of November 2002 and reported on 9 December 2002 means a delay for referral to diagnosis of about seven months. That is a long time in the plaintiff’s life at that stage. It follows in my view that a delay of seven months in formal diagnosis is an unreasonable delay, and does not adequately address the duty of care owed.

… The diagnosis is the only key which has the potential to unlock the package of ameliorating measures to which the plaintiff would be entitled after diagnosis. In my view it was foreseeable by them that delay in diagnosis would as a matter of probability impact adversely on the rate at which any deficits would be reduced, and that his progress would be delayed as a result.

It was known by all concerned from that point onwards that early intervention was essential. It was known that lack of early intervention at that sort of age has adverse implications for deficit reduction. While accepting the reality facing the HSE personnel that they did not have sufficient resources to address adequately the demand on services, this alone is insufficient in my view to reduce the scope of the duty of care given the extreme vulnerability of the children with whom they are dealing. The duty of care in relation to such vulnerable and dependent children who are in need of urgent attention places a particular onus upon those with responsibility, to provide relevant assistance within reasonable timeframes. It is just and reasonable that this be so given the nature of autism.”

Peart J stated: “it is not disputed that the statutory content of the 2005 Act - the diagnosis of disability in childhood-imports a significant degree of urgency in the assessment of children from disability. This is evident from the use of the term “as soon as possible” in article 9 of the 2007 regulations, the clear intention of the Oireachtas being that the assessment would commence as soon as possible, within the three month period specified within section 9 (5) of the 2005 act and article 9 of the 2007 regulations constituting the maximum time and the very outer limit for commencement of the assessment of needs. Further, it does not appear that there are any other provisions in the act or regulations which permit delay in the commencement of the assessment of need.” Peart J went on to say “while there is no statutory provision, where a complaint has been upheld, directing the complaints officer to specify a particular timeframe for the commencement or completion of the assessment of need, as the case may be, it seems to me that any such recommendation would have to take cognizance of the timeframes set out in section 9 (5) of the 2005 Act and the 2007 regulations for the commencement and/or completion of an assessment of need, and the fact that any such recommendation is being made against the backdrop of an already established delay, in circumstances where the assessment of need is subject to mandatory timeframes as a matter of first principle.”

INTERPRETATION OF THE ACT: I am satisfied that it is clear that the provisions of the 2005 Act import a significant degree of urgency in the assessment of children for disability and provision of services. The meaning of “substantial disability” in the definition of disability refers to the need for services to be provided to the person or “if the person is a child, to the need for services to be provided early in life to ameliorate the disability” (section 7 (2). If a child is assessed with a disability in accordance with the Act a statement is prepared of the needs of the child and the period of time ideally required for the provision of the services and the author of such provision. If the assessment report includes a determination that the provision of a health service or education service or both is or are appropriate, he or she shall arrange for the preparation by a liaison officer of a service statement specifying the health services or education services or both which will be provided by or on behalf of the executive and the time within which such services will be provided. Article 18 of the Regulations provides that the service statement shall specify the health services which will be provided to the applicant; (b) the locations(s) where the heath service will be provided (9(a).

A complaint can be made by an applicant or on behalf of an applicant to a Complaints Officer that the executive failed to PROVIDE OR FULLY PROVIDE A SERVICE SPECIFIED IN THE SERVICE STATEMENT (emphasis added). If the report of the Complaints Officer contains a finding that the Executive failed to provide or fully provide a service specified in the Service Statement the Report may contain a recommendation that the SERVICE BE PROVIDED IN FULL by the Executive within the period specified in the recommendation. Section 22 of the Act provides that if the Executive fails to implement in full the recommendation of the complaints officer within three months then the applicant may apply to the Circuit Court for enforcement.

I am satisfied that the meaning of the act in this regard is that if Complaints Officer finds that the service is not provided or fully provided by the Executive and he/she makes a recommendation that a service be provided in full by the Executive within the specified period this recommendation cannot be defeated by circumstances where the service cannot be provided in full or in part at a particular location. The reason for this is that while the service statement under the Regulations shall specify the location(s) where the service is to be provided, the recommendation of the Complaints Officer, (section 15 (8) (f) of the Disability Act 2015) refers to a finding by the Complaints Officer that the Executive has failed to provide/fully provide a service specified in the Service Statement and grants power to make a recommendation that THE SERVICE BE PROVIDED IN FULL BY THE EXECUTIVE. I am satisfied that the Legislature did not intend that it the service could not be provided at a particular location that the recommendation and consequently the power of enforcement of the Circuit Court came to end. This is clear generally from a purposive interpretation of the legislation and in particular for the following reasons:

(a) “The overall function of the HSE is to give effect to the act and to provide the services as described therein” (HSE v Dykes). The act recognises the importance of early intervention where a child is assessed with a disability by providing for assessment, a service statement providing for specified services to be provided within a specified timeframe, a complaints mechanism in relation to complaints that the Executive has failed to provide or to fully provide the said services and an enforcement procedure if the Complaints Officer has reported that the Executive has failed to provide or to fully provide the services and has recommended that the Services be provided in full, the Circuit Court has jurisdiction to order the HSE to implement the recommendation in accordance with its terms.

(b) Under the Act the applicant must wait 3 months after the recommendation of the Complaints officer to apply to the Circuit Court for enforcement [section 22 (1) (a) If the Executive fails –

(iii) to implement in full a recommendation of a complaints officer, within 3 months from the date on which the .. recommendation is communicated to him/her or, where the ..

recommendation specifies a date for the provision of a service, within 3 months from the date specified in the .. recommendation for such provision then the applicant may apply to the Circuit Court for an order..] In this case the Disability Complaints Officer had specified that intervention be commenced no later than January 2020. The Notice of Motion seeking enforcement before the Circuit Court was lodged in the Circuit Court Office on 11th July 2021.

It is clear that the legislation takes into consideration that by the time an Applicant can bring an enforcement application to the Circuit Court on the time line set out in the statute (3 months minimum) and on the facts of this case, a considerable amount of time has elapsed during which places available in for example Beechpark services may have been allocated to other suitable applicants and may no longer be available to another applicant. If the contention argued by the Respondent was the case, then the legislation would have provided that pending the expiration of the time permitted to make a complaint and in the event of a complaint pending the determination of that complaint, the services recommended at the specified location would be reserved for this Applicant.

Account would also have to taken of the commencement date of the services recommended by the Complaints officer and if an appeal was pursued by the HSE this would also have to taken into account. I am satisfied that it was never the intention of the legislature that enforcement would not be available in circumstances where services could not be provided at a particular location. By their very nature placements at particular locations providing these services are limited and are filled in accordance with availability and the relevant priority of each applicant.

It is clear that the act gives the Executive the 3 month period from the date that the recommendation of services by the Complaints officer is communicated to the Executive or where the recommendation of the Complaints officer specified a date, 3 months from that date, BEFORE an applicant may apply to the Circuit Court for enforcement. Presuming that it takes an applicant a period of time to thereafter bring and have listed an application to the Circuit Court, this affords a significant period of time to the HSE in the event that the services can not be provided at the original location(s), to provide them at another location or locations.

I am satisfied that this is the intention of the act. If is also clear that if a particular service is identified in a Service Statement to be provided by the HSE at a particular location on a future date for a particular applicant, when the specified date is reached it can be the case that this place is not available due to the course being full or another applicant or applicants obtaining greater priority. I am satisfied that for the reasons outlined above it was not the intention of the Oireachtas that in this eventuality the enforcement procedure could not be implemented and that an applicant (who at that stage had been subjected to a significant delay in obtaining the required services)

would have no redress to the enforcement procedure .

COVID 19 PANDEMIC/DIVERSION OF RESOURCES: I am satisfied that the social policy announced by the government is that there has been a return to work and return to schools. There has not been any amendment to the Disability Act or statutory instrument to provide that assessments and enforcement orders under the act have been suspended. I am satisfied that since the enforcement findings of the Complaints Officer of 4th September 2019 (which considered the issue of resources) the applicant has not (apart from some speech and language sessions) received the services identified of psychology, occupational therapy, and speech and language therapy as recommended by the Complaints officer. I note that the complaints officer recommended that intervention be commenced in a realistic timeframe, but no later than January 2020. I am satisfied that the respondent has failed in accordance with section 22 (iii) of the act to implement IN FULL the recommendation of the Complaints Officer within three months of 4 September 2019 that the applicant received the said services. I am satisfied that the said services required by the applicant are still required by the applicant.

SERVICE OF FURTHER SERVICE STATEMENTS IN THIS CASE: I find that the service of further “service statements” in this case which are required by the legislation to be served annually, do not trump the determination of the “complaints officer i.e. the service of further service statements in this case does not mean that the determination of the complaints officer is of no effect or to use the words of Mr Jefferies “out of date“. In making this finding I take into account that the respondent did not appeal or judicially review the determination. I also take into account that any delay in bringing the motion before the circuit court is not attributable to the applicant. I am satisfied that the services recommended by the complaints officer are still required by the applicant and have not been provided. I make these findings based on the literal interpretation of the act together with the “purposive” interpretation and also interpreting the legislation in accordance with the Constitution and the EU Convention on Human Rights.

In so far as the issue submitted by the Respondent of the Applicant’s mother agreeing to having the services provided outside Beechpark I do not consider that this arises for consideration having regard to the contents of her affidavits.

THE STATE AS A MODEL LITIGANT: In McManus v Minister for Justice and Equality (2021) IEHC 385 judgement of Mr Justice Twomey the issue involved a Constitutional challenge to s 27(3F) of the Misuse of Drugs Act 1977 the High Court referred to an article by Murphy J. – “the Role and Responsibility of the State in Litigation” and also the judgement of Charleton J. in the Supreme Court case of Zalewski v W.R.C. (2021) IESC 24 in relation to the role of the State as a model litigant. It remains to be seen (and I make no comment on the matter) whether this will apply to the HSE (and indeed applicants) in future cases on this issue and if so the effect of same but I merely highlight it as obviously these cases as pointed out by Meenan J. in the High Court recently involve use of very limited resources. It would be in my view a step backwards if litigation seeking enforcement by an applicant were met with submissions that the Circuit Court did not have jurisdiction for technical reasons in circumstances where if that argument were successful the battleground may move to the High Court by way of judicial review.

ORDER: I will make an Order pursuant to section 22 of the Disability Act 2005 directing the HSE to implement in full the recommendation of the Complaints Officer dated 4th September 2019 that the infant applicant is provided with psychology, occupational therapy and speech and language therapy services in a realistic time frame but no later than within (a date to be specified after I have heard any submissions from Counsel).