Appeal dismissed as new autism diagnosis and updated service statement supersede the original 2020 determination.

THE HIGH COURT

[2025] IEHC 749

Record Number 2025/67 MCA

IN THE MATTER OF AN APPEAL PURSUANT TO

SECTION 20 OF THE DISABILITY ACT 2005

Between

O.J. and H.J. (a minor suing by his mother and next friend O.J.)

Appellants

and

DISABILITY APPEALS OFFICER

Respondent

and

HEALTH SERVICE EXECUTIVE

Notice Party

JUDGMENT of Ms Justice Nessa Cahill delivered on 22 December 2025

Introduction

1. This is an appeal brought pursuant to section 20 of the Disability Act 2005 (“the 2005 Act”) on a point of law. It is an appeal against a determination of the disability appeals officer (“the DAO” or “the Respondent”) of 22 January 2025 (“the Determination”).

2. The Determination concerns the provision of services for a child (now 17 years old) who was assessed in 2020 to have Developmental Coordination Disorder (“DCD”), but not to meet the diagnostic criteria for an assessment of autism spectrum disorder (“ASD” or “autism”) (“the 2020 Assessment”). The services to be provided on foot of that assessment were set out in the service statement issued on 11 March 2020 (“the 2020 Service Statement”). The appeal concerns – in broad terms – the provision of services to deal with the 2020 Assessment as set out in that Statement.

3. This appeal has been overtaken by events in a number of significant respects. First, there was a new assessment on 9 December 2024 which confirmed that the child meets the diagnostic criteria of autism (“the 2024 Assessment”). This was confirmed by an assessment report dated

9 April 2025. That report recommended that the diagnosis of autism would best be met in the HSE’s Children’s Disability Network Team (“CDNT”) (among other recommendations).

Second, a new service statement was issued on 24 April 2025 on foot of the 2024 Assessment which sets out the services which must now be provided in light of the 2024 Assessment and recommends the provision of services through the HSE’s CDNT, which includes psychology, speech and language therapy and occupational therapy resources (“the 2005 Service Statement”). Third, as the 2025 Service Statement also reports, the child and his family have attended the CDNT waiting list clinic; an Individual Family Service Plan has been completed;

the child is “now active” in the CDNT; and it was then expected that the necessary support would be provided by that Team from July 2025. During the hearing of this appeal on 30 September 2025, it was indicated that at least some of those services were being provided.

4. It was common case between the three parties that this appeal is limited to a challenge to the 2020 Service Statement dealing with the needs identified in the 2020 Assessment. However, the 2020 Assessment no longer fully reflects the needs of this child: his needs have now been assessed to be different and additional to those which were identified in that Assessment.

Consequently, the services which are required to meet his needs are no longer the same.

5. Despite this change in understanding and assessment of the child’s needs, this appeal challenging a determination based on the 2020 Assessment was proceeded with. I have significant doubts as to the utility of these proceedings or the benefit the Appellants may derive from them, a point to which I will return.

6. The following topics will be addressed in this judgment:

- Background

- The Determination

- Futility/mootness of the appeal

- Test to be Applied

- Scope of the Appeal

- First Ground: Obligation to make recommendations

- Second Ground: Irrationality

- Section 11(7)

- Alleged error of law regarding start dates

- Conclusions

BACKGROUND

7. In the course of this appeal, including in the written and oral submissions presented, counsel for the Appellants paid considerable attention to the history to this appeal and the substantive issues that gave rise to the Determination.

8. It warrants emphasis that the Appellants were successful in the appeal to the DAO and the appeal is on a point of law only as regards the form of recommendation that was made. Accordingly, the only real issue in contention is whether the DAO erred in law in making a recommendation on 22 January 2025 for the preparation of another service statement. The Appellants’ case it that she should instead have made “an enforceable recommendation for the provision of specific services by a specific date as she was required to do under s. 15(8)(f) of the 2005 Act” (the Appellants’ written submissions at [19]).

9. The Appellants’ case largely hinges on the interpretation of section 15(8)(f) of the 2005 Act. In these circumstances, the relevance of the detailed factual background is somewhat limited. This is subject to the qualification that the history of this matter shows an obvious and significant delay in the provision of services to the child. Both the DAO and the HSE accept that the time lag for the provision of services in this matter was regrettable.

10. The background facts may be summarised as follows:

11. The First Appellant ("the mother") is the mother of the Second Appellant ("the child"), who was diagnosed with DCD in 2016. The child had been provided with primary care speech and language therapy in 2011 and 2013 and, following the DCD diagnosis, received primary care speech and language and occupational therapy in 2018. In November 2018, the mother applied

for an assessment of need for the child, pursuant to section 9 of the 2005 Act. He was then ten years old.

12. The Appellants received the 2020 Assessment on or about 20 January 2020, recommending the provision of speech and language, psychology, physiotherapy and occupational therapy services “as soon as possible”. The 2020 Service Statement was issued by a Liaison Officer (“LO”) on 11 March 2020. That Statement gave a start date for the provision of psychology and speech and language therapy of January 2023, with occupational therapy to commence in December 2021.

13. The Appellants lodged a statutory complaint to a Disability Complaints Officer (“DCO”) on 21 October 2020, pursuant to section 14(1)(e) of the 2005 Act. On 30 October 2020, the DCO rejected the complaint on the basis that the primary care service provider (the HSE) could not provide the services sooner and the DCO was aware of no earlier intervention options with other service providers.

14. On 8 December 2020, the Appellants appealed the findings of the DCO to the Respondent pursuant to section 18(1) of the 2005 Act. The Appellants specifically challenged the DCO’s reliance on staff shortages or lack of resources as a defence to the complaint. The Appellants asked the DAO to set aside the finding of the DCO and to make a determination that the services must be provided within a specified period of time “or, alternatively, to remit the matter to the DCO with a direction that the DCO do so”.

15. An amended service statement was issued on 5 March 2021, setting out start dates of January 2023 and July 2022 for the recommended services.

16. In October 2021, the child was discharged from primary care occupational therapy.

17. On 9 November 2021, a determination was issued by the DAO upholding the DCO’s recommendation. That determination included the finding that the DAO lacked jurisdiction to make a recommendation in relation to the dates for provision of services.

18. In May 2022, the child was discharged from primary care psychology services.

19. The Appellants issued a statutory appeal to the High Court on a point of law, which was ultimately conceded by the DAO (on the basis of the Supreme Court judgment in JN and TM v Harraghy [2023] IESC 9 (“JN”)).

20. By court order dated 14 June 2023, the matter was remitted to the DAO “for reconsideration in light of the judgments of this Honourable Court in N v Harraghy [2022] IEHC 407 and the Supreme Court in [JN].”

21. The Appellants requested a review of the child’s assessment in April 2024 and it seems the formal review commenced on 24 September 2024, with assessments being carried out in October 2024. A clinical psychology report was issued in November 2024.

22. As of December 2024, the child was not waitlisted for psychology, speech and language therapy or occupational therapy via primary care services (it is common case that the child had not been in receipt of services directed to the 2020 Assessment for some time).

23. The 2024 Assessment indicating that the child does meet the diagnostic criteria for an autism assessment was issued to the mother on 10 December 2024. There was no National Council for Special Education (“NCSE”) input into this report and a further report was produced on 9 April 2025 including this input. These reports recommended a move away from primary care to the care of an interdisciplinary team under the Children’s Disability Network Team (“CDNT”).

24. On 11 December 2024, the mother was provided with a referral form to access the CDNT.

25. The Determination under appeal was delivered on 22 January 2025.

26. This appeal on a point of law was then issued on 11 February 2025, grounded on an affidavit sworn by the mother. A replying affidavit was sworn by the Respondent on 10 April 2025 and an affidavit was sworn on behalf of the HSE on 27 May 2025.

27. The 2025 Service Statement (which addressed the needs identified in the 2024 Assessment) was produced on 24 April 2025.

28. The child and his family have attended the CDNT waiting list clinic; an Individual Family Service Plan has been completed; the child is “now active” in the CDNT (according to the 2025 Service Statement); and at least some of those services recommended in that service statement are being provided.

THE DETERMINATION

29. As the Appellants themselves state, they were comprehensively successful before the DAO.

The findings are not therefore challenged or of direct relevance here.

30. The Determination addressed the issue of private service providers as follows:

“4.7 As part of my investigation requests were made to nine private service providers in the CHO9 and/or surrounding areas for information relating to 2020 and 2021 services. By date of this determination information received from three private service providers indicated that wait times ranged from 6 to 12 months for Speech and

Language therapy and from 2 weeks to 8 weeks for Occupational Therapy during 2020 and 2021.

4.8 Examination of the Liaison Officer’s ‘Process and Practice Guidelines’ used during that time indicates that only service providers who were contracted to, or funded by the HSE could be considered for service provision.

4.9 In his judgement of 14 December 2023, Mr Justice Oisin Quinn stated that Section 11(2) of the Act does not limit the provision of services to organisations that receive grants or funding from the HSE, and he suggests that “service providers could include...community groups, voluntary groups and indeed any number of private service providers.”

4.10 A response from the HSE Assistant National Director for Access and Integration, Disability Services to a query relating to the option of considering other service providers when preparing a service statement, indicated that this was an option once those services are appropriately overseen by the relevant CDNT service.”

31. The material parts of the Determination are the findings and recommendations:

32. The findings made are the following:

“6.1 I find that pursuant to 11 (7) (d), the HSE Liaison Officer at that time, in drawing up a Service statement, was either restricted in, and/or did not consider what other service provider could be used, in which case the practicability of service provision could be different.

6.2 I find that pursuant to 11 (7) (e), there was no indication during my investigation that service cost, or a risk of excessive expenditure, was a reason why a service could not be provided at an earlier date.

6.3 While private service providers had shorter waiting times during 2020 and 2021, I have found that HSE Liaison Officer procedures did not include the consideration of other service providers.

6.4 I find that, pursuant to Section 11 (2) of the Act, that the Liaison Officer, while required to specify services to be provided 'by or on behalf of the Executive', only made consideration of one service provider.”

33. The conclusions contained in the Determination are as follows:

“7.1 Pursuant to section 15(8)(f) of the Act I have decided to vary the Complaints Officer's finding that the HSE did not fail to provide or to fully provide services specified in [the child’s] service statement of 11 March 2020 for the following reasons:

7.1.1 Evidence provided during this appeal demonstrates that the HSE failed to explore all potential avenues for service provision, particularly the possibility of engaging private providers.

7.1.2 While the specified service start dates in the service statement had not yet passed at the time of the original complaint, I find that these dates could have potentially been set earlier for Speech and Language Therapy and Occupational Therapy, had other service providers been considered.

7.1.3 Therefore, due to the failure of the HSE to make consideration of alternative service providers, the HSE failed to explore all options to ensure that services specified in the service statement would be provided or fully provided at the earliest possible date.”

34. The Determination then included the following recommendations:

“8.1 A Liaison Officer must prepare an amended service statement for [the child] y by 23 April 2025.

8.2 In preparing the amended service statement the Liaison Officer must include a consideration of all available service provision options to ensure that the services specified in [the child’s] service statement can be provided or provided in full at the earliest possible date.”

MOOTNESS/FUTILITY OF THE APPEAL

35. As already noted, the Respondent and the HSE did not press the argument that this appeal is moot, although both parties did lay emphasis on the fact that there has been a material change of circumstances and that the 2020 Assessment and the 2020 Service Statement have been overtaken and supplanted by (or encompassed in) the 2024 Assessment and the 2025 Service Statement. Given the facts, I am of the view that significant questions arise as to the utility and purpose of these proceedings and the merit of taking up resources and time (including those of the court) in an appeal of this nature. I therefore address these questions here.

36. The relevant facts are that, according to the 2020 Assessment, the child meets the diagnostic criteria of autism. This new assessment was on foot of a request for a review of his needs by his mother. Such a request may be made upon the occurrence of “a material change in circumstances”, among other circumstances (section 9(8) of the 2005 Act). The 2025 Service Statement and the services that are being provided since then are directed to that most recent and different assessment of the child’s needs.

37. Given these material developments in terms of the needs of the child, there is an immediate and obvious question as to why this appeal – directed solely to the 2020 Assessment - is being pursued and what benefit the Appellants can derive from it.

38. Put simply: this appeal concerns a determination that arises from a service statement issued in March 2020. That service statement was addressed to the 2020 Assessment that the child had DCD and did not have autism. There is now a different assessment in place that he has further needs in addition to DCD, and the priority must be to ensure that the child is provided with the services that are directed to his needs as now understood.

39. The obvious question is what benefit the Appellants could derive from the orders sought in this appeal. An order setting aside the DAO’s Determination or remitting the matter to the DAO – which are the orders sought by the notice of motion – focus entirely on the 2020 Assessment that the child has DCD and not autism. I do not see how it could help the child for the DAO to undertake another investigation of the services available to help him with the DCD assessment, given the current, different and additional understanding of his needs.

40. The purpose of the 2005 Act is to provide “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” (long title to the Act). It is directed to providing services to meet the needs of persons with disabilities occasioned by those disabilities. The overriding imperative for this child now is to ensure that he has the services needed to meet the totality of his needs, within the parameters and structures of the 2005 Act. The importance of such early intervention following an autism assessment was addressed in the Appellant’s submissions, by reference to the judgment of Faherty J. in JF v. Health Service Executive [2018] IEHC 294.

41. The question of a challenge to a decision under the 2005 Act becoming futile or moot was addressed in IB v. Health Service Executive [2023] IEHC 537. In that case, the HSE contended that the proceedings seeking to challenge the content of a service statement were moot or futile as a second revised service statement (the third statement overall) had been delivered since the impugned statement. It was asserted that the challenge was premised on a “reality which no longer exists”; that the second service statement could no longer be enforced; and the appeal was moot.

42. This argument was rejected by the High Court, with particular emphasis placed on the obligation under regulation 22 of the Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007 to review each service statement at least annually: “The service statement shall be reviewed no later than 12 months after the statement was drawn up or no later than 12 months from when the statement was either last reviewed or amended.”

43. The relevant finding by Bolger J. was as follows:

“… the actual reality on the ground is that this child has a recognised need for services that have been identified as including psychology, speech and language therapy, occupational therapy and social work. Those needs are set out in the Assessment of Needs and in all three Service Statements to date including in the third service statement that the HSE seem to view as providing for a different way of delivering those services. The change in the service provider between the second and third Service Statements from a single service provider to unified multidisciplinary teams did not and could not alter this child's needs that were first identified in their Assessment of Need of 19 November 2019. The third Service Statement of January 2022 did not supersede the second Service Statement or render it or the services it specified, irrelevant. Otherwise, the HSE's obligation under Regulation 22 to review the service statement every twelve months could allow the HSE to avoid having to deal with a Disability Complaints Officer's recommendation pursuant to s.15 that a service specified in a service statement be provided” (at [31]).

44. Bolger J. noted that the provision for amending a service statement under section 11(9) applies when there is a change in circumstances, such as a change in the needs of the child (citing MB v HSE [2023] IEHC 99). This did not arise in IB. There, the service statement was never amended, but was reviewed a number of times, based on the same assessment of needs. Bolger

J. emphasised that,

“A reviewed Service Statement is not a new Service Statement. It is a review of the Service Statement that was previously issued in accordance with s. 11(2). The HSE's submissions on mootness and futility are premised on their assertion that once a Service Statement is reviewed, the reviewed version supersedes the previous Service Statement. I do not think that analysis is supported by the wording of the legislation. It is only where a Service Statement is amended in accordance with s.11(9) that a brand new service statement is put in place, whereas a review is (as Regulation 22 says) of “the” Service Statement. Therefore, the Second Service statement was a review of the original Service Statement dated 19 November 2019 and the third Service Statement was a further review of that same original Service Statement. Similar services are identified in each review and each reflects the service needs that were identified in the Assessment of Needs” (at [30]).

45. Bolger J. concluded that “[t]he existence of a third Service Statement did not supersede the second Service Statement and/or rendered the proceedings moot or futile” (at [40]). This

decision hinged on the “new” service statement being a statement that was the result of a review required by legislation and not a “new” statement that was amended to respond to a change in the child’s needs. In reaching that conclusion, Bolger J. drew on the summary of the law on futility as set out by Donnelly J. in H.A. v Minister for Justice [2022] IECA 166 at [42]:

“(i) The discretion to refuse relief by way of judicial review should be exercised with discernible caution;

(ii) Having already determined that a decision is vitiated by error of law, relief ought not to be refused on the ground of futility unless it is very clear that the granting of relief is futile in the sense of being incapable of benefitting the applicant for judicial review;

(iii) The onus of establishing that it is very clear that the granting of relief is futile remains on the party who makes that assertion;

(iv) In deciding upon this issue, the Court should look at the entirety of the situation and consider the particular facts of each individual case, there being several ways in which this may best be done;

(v) The Court must be mindful that it is decision-making bodies who have been charged by statute with the particular decision-making function;

(vi) The issue is whether the applicant for relief by way of judicial review has a case to make on remittal of the issue to the statutory decision-maker is to be judged by whether it is arguable that they may achieve a benefit in that procedure;

(vii) If it appears arguable that the moving party on the judicial review application may achieve a benefit for any reconsideration of their case by a decision, the low threshold for the grant of relief will have been reached;

(viii) Where truly there is no basis upon which the decision-maker could reach a different conclusion than the decision already reached but impugned in the proceedings, then it may be appropriate to exercise discretion to refuse relief;

(ix) Where, however, there are issues of fact upon which adjudication is required and which in themselves are material to success or failure, then their resolution must be left to the statutory decision-maker;

(x) Where there are issues of law which may be resolved by the Court, it may be appropriate to exercise the discretion to refuse to grant judicial review, but only if it is clear that fuller argument and greater thought is evidently not required for a better determination of such issues;

(xi) The overriding determinative factor, bearing in mind the constitutional basis of the parties' right to fair procedures and the legal basis of the claim for relief being made by an applicant, is the achievement of a just result whether that is to grant or refuse certiorari” (at [42]).

46. It is important to note the context in which those principles were formulated in HA: the application for family reunification to allow the orphan niece and nephew of the applicant to enter and reside in the State was refused by the Minister without regard to a declaration by a Somali court that the applicant was responsible for those children. The High Court and the Court of Appeal held that the Minister’s decision was vitiated by error. The Minister contended that it was futile to grant an order of certiorari as the application was bound to fail, on the ground that the concept of “child” was limited to a biological or adopted child. The applicant’s case was that the issue was arguable and that further evidence and submissions were required for it to be decided.

47. The question identified by the Court of Appeal was “what is the burden of proof where a party asks the court not to proceed to quash the order, even though there has been a breach on a procedural ground, because a remittal of the matter would not produce any benefit to the applicant for judicial review?” It was in that context that the Court set out the list of factors set out above before concluding that the relief was not futile, noting “the overriding consideration of ensuring that a just result be obtained” following a finding of error (at [45]). The particular species of futility in HA was futility of an order quashing a decision, despite a finding that there were grounds for that order to be granted.

48. The situation in this case is different, as the question here is whether the appeal itself is futile or moot, due to a material change in circumstances, which is quite distinct from the question of whether it is futile to grant an order quashing a decision despite a finding of error.

49. In IB, the substantive point of law was that the decision of the DAO erroneously referred to the first service statement and not the second service statement (which was the subject of the appeal). The HSE was not standing over the lawfulness of the DAO determination and relied wholly on the mootness challenge (and a separate contention of lack of candour). That case therefore did have a similarity with HA. On the basis of the principles summarised in HA, the argument of mootness/futility was rejected and the appeal was successful.

50. The Appellants rely on IB as authority that this appeal is not moot or futile. In reply, counsel for the HSE points out that the third service statement relied upon in IB to ground the allegation of mootness was a statement that was revised pursuant to regulation 22, without any new or different assessment of needs. As counsel for the HSE points out, the situation here is quite distinct: the child has been the subject of a new and different assessment of his needs and this is reflected in the 2025 Service Statement. The finding in IB that there was no alteration of the child’s needs is not apposite here. In this case, by contrast with IB, I consider that there is a good basis to contend that the question of the services to be provided on foot of the 2020 Assessment is no longer a live question for the Appellants and is moot.

51. In these circumstances, and in light of the significant change in the assessment of the child’s needs, I repeat my firm misgiving as to the utility of this appeal and my doubts as to the benefit that may be derived by the Appellants from pursuing it.

52. However, while HA concerns a discrete legal and factual scenario and a particular form of futility, I am mindful of the findings of Donnelly J. as to the caution to be exercised in deeming a challenge to be futile, and the placement of the burden on the party alleging futility. Neither mootness nor futility was pressed by the Respondent or by the HSE as a basis to refuse this appeal. No authority on mootness was opened to me or referenced in submissions (although the applicable principles are well known and neatly summarised in IB at [35])). I do not therefore consider it appropriate to determine the appeal on this basis.

53. One point that does emerge from the discussion about IB is the characterisation of the service statement of 24 April 2025. Counsel for the Appellants is critical of what he perceives to be a lack of clarity as to the nature of this statement. I agree that there is some scope for confusion, given the DAO directed a new service statement be prepared by 23 April 2025, while there is also a separate obligation to prepare a new service statement within a month of an assessment report. Regulation 19 of the 2007 Regulations provides: “The service statement shall be completed within one month following receipt of the assessment report by the Liaison Officer.”

54. Section 11(9) of the 2005 Act is also relevant here:

“A liaison officer may, if he or she considers it proper to do so having regard to any change in the circumstances of the applicant concerned or to any change in respect of the matters referred to in subsection (7), amend a service statement and shall furnish a copy of the amended statement to the applicant, to the Executive, and, if appropriate, to the chief executive officer of the Council and the head of the education service provider concerned.”

55. Counsel for the HSE suggests that the 24 April 2025 Service Statement fulfilled this purpose and that it is an “amended” as opposed to a “revised” statement.

56. While there may be some ambiguity as to the interaction between the DAO Determination and the 2025 Service Statement, I agree with the HSE that it is clear that the 2025 Service Statement is addressed to the changed circumstances, namely the needs of the child as assessed in late 2024. It is not a “revised” statement for the purpose of regulation 22 (such as the third service statement in IB) but is a statement that is directed to needs different and additional to those which prompted the previous service statements. It is an amended service statement within the meaning of section 11(9).

57. This answers the contention by counsel for the Appellants that, if the issue of a new service statement is treated as supplanting the prior statement, this would give rise to a risk of circumvention of challenges to service statements and would lead to the process being protracted. While the discrete argument concerning “revised” service statements under regulation 22 was considered in IB, this argument by counsel for the Appellants ignores the fundamental fact that the 2025 Service Statement is based on a new assessment. It is not a question of circumvention of a challenge to the 2020 Service Statement, but rather a question of how best to address the needs of the child as they are now understood. This is not done by re-visiting the services required for the needs identified in the 2020 Assessment.

TEST TO BE APPLIED

58. The Appellants and the HSE agree that AG v. Davis [2018] 2 IR 357 is the correct authority in terms of the scope of an appeal on a point of law. There, McKechnie J. (O’Donnell, MacMenamin, Dunne, O’Malley JJ. agreeing) noted that,

“… a statutory right of appeal on a point of law will, if its wording does not otherwise prescribe, include the following:-

• errors of law as generally understood, to include those mentioned in FitzGibbon v.

Law Society of Ireland[2014] IESC 48, [2015] 1 I.R. 516;

• errors such as would give rise to judicial review including illegality, irrationality, defective or no reasoning, procedural errors of some significance, etc.;

• errors in the exercise of discretion which are plainly wrong, notwithstanding the latitude inherent in such exercise; and

• errors of fact next referred to” (at [54]).

59. Errors of law, as generally understood, include the adoption of incorrect or erroneous views of the law. If a decision is based on such an error, it is liable to be set aside.

60. The Respondent’s position is that the applicable threshold is that set out in Orange Limited v.

Director of Telecoms [2000] 4 IR 159 of whether the decision was “vitiated by a serious and significant error or a series of such errors”, with regard to the expertise and specialised knowledge of the respondent. The Appellants also cite this authority in their written submissions. This test connotes an element of curial deference.

61. For the reasons set out in several judgments (of which Stanberry Investments Limited v.

Commissioner of Valuation [2020] IECA 33 is a good illustration), there is no room for deference to be afforded to a decision maker in an appeal on a point of law when the issue concerns the interpretation of legislation and the scope of the decision-maker’s statutory powers or responsibilities (as here). This point was not pressed by the DAO.

SCOPE OF THE APPEAL

62. The HSE emphasises the need to have regard to the scope of the appeal as set out in the notice of motion. Reliance is placed on Board of Management of Scoil an Chroi v. Donnelly [2020] IEHC 550. In that case, Hyland J. made the following observations:

“In this type of statutory appeal, there is no requirement for a statement of grounds. Rather the point of law must simply be introduced in a notice of motion. The Minister was admirably succinct in her identification of same. Nonetheless, given that the jurisdiction of the court exists exclusively in relation to a point of law identified by an appellant under s. 34(2), I only have jurisdiction in relation to the point of law identified in the notice of motion. The four walls of the court's jurisdiction are delineated by the point of law identified. I do not have jurisdiction to extend the statutory appeal to points not encompassed by the point of law identified. No matter how widely I interpret the point of law in this case, I cannot define it to include a failure to give reasons. Averments that include a complaint about a factual situation cannot be the basis for an implicit amendment of the points of law the subject of the appeal”

(at [58]).

63. This is an important reminder that the scope of the appeal must be defined by the notice of motion and that there is no jurisdiction to determine points not included in that document. The notice of motion here needs to be carefully considered to ensure the grounds being advanced are properly within the scope of this appeal.

64. Turning to the notice of motion, it recites in detail the background to this appeal and then records that the Determination being challenged “comprehensively upheld the Appellants’ appeal”.

The grounds then set out are as follows:

65. First, it is said that there is “a general recommendation for the provision of an updated service statement rather than an enforceable recommendation for the provision of specific services by a specific date”. This is said to be in breach of the DAO’s statutory and legal duty to vary or amend the findings of the DCO and make enforcement recommendations under section 15(8)(f).

66. Second, it is said that no reasonable person could draw the conclusions/inferences drawn here and that the conclusions/inferences are unsustainable, unreasonable, vitiated by significant errors or series of errors, in breach of statutory duty, fair procedures and constitutional justice (“the Irrationality Ground”).

67. As there was some discussion during the hearing about the scope of the Irrationality Ground, I set out the full point of law as identified in the notice of motion:

“The Respondent's findings should be set aside based on the manner in which the Respondent reached her conclusions, amounting to an error of law, in the premises that:

(i) no reasonable person/Disability Appeals Officer could draw the conclusions and/or inferences drawn by the Disability Appeals Officer;

(ii) the conclusions and/or inferences drawn by the Disability Appeals Officer are unsustainable, unreasonable and/or abhorrent to logic and common sense;

(iii) the conclusions and/or inferences drawn by, the Appeals Officer are vitiated and/or undermined by a serious and significant error or a series of errors which together amount to such an error;

(iv) the Disability Appeals Officer in her decision has erred in law and/or breached an express or implied statutory duty and/or breached fair procedures and natural and constitutional justice and/or vitiated and/or undermined the decision by a serious and significant error or series of errors…”

68. Counsel for the Appellants sought to argue that the ground is a broad one, as it encompasses the “manner in which the Respondent reached her conclusions”. He contended that, owing to these words in the notice of motion, the appeal includes a challenge to how the DAO assessed the Appeal and the factors to which regard was had (or not had). It was specifically contended that this Irrationality Ground includes the legal ground that the DAO failed to consider the factors listed in section 11(7) of the 2005 Act. During oral submissions, counsel for the Appellant also introduced a criticism that the DAO investigated the availability of services in 2021 and 2022, rather than the present state of such availability. I do not accept that such grounds - which concern the assessment and investigation by the DAO rather than the recommendations madeare properly identified as points of law in the notice of motion.

69. The opening words of the Irrationality Ground are limited by the words “in the premises that”

and the following text, which sets out four specific grounds, each of which is based on the conclusions/inferences being irrational or erroneous. None of these grounds refer to the investigation or to section 11(7) or suggest that the complaint concerns the factors weighed by the DAO. On the contrary, the only ground of irrationality identified in the notice of motion concerns the scope and content of the recommendations made.

70. This comes back to the point that the purpose of the notice of motion in an appeal on a point of law is to identify specific points of law which dictate the scope of the appeal. If the Irrationality Ground in this notice of motion was accepted to be as broad as the Appellants suggest, potentially encompassing a challenge to unidentified aspects of the investigation and assessment by the Respondent, this would defeat, and allow circumvention of, that purpose.

71. While affidavits are not relevant to assessing the scope of an appeal on a point of law (as noted by Hyland J. in Donnelly), it is telling that the grounding affidavit sworn by the First Appellant does not support the broader case being attempted by the Appellants by way of legal submission. On the contrary, the First Appellant does complain about how the DCO carried out the investigation, but all that is said regarding the DAO, is “whilst the findings are welcome, the Determination is of limited practical use to us”. No other point is made about the Determination or the factors weighed in the Determination.

72. I am satisfied that this appeal is confined to points of law concerning the recommendations made, rather than a challenge to the investigation or assessment conducted by the DAO. The notice of motion does not encompass a ground that the DAO failed to properly consider section 11(7) or that she otherwise erred in the assessment of the Appeal. Despite this finding, I will deal with the legal submissions made regarding section 11(7) later in this judgment for completeness.

FIRST GROUND: ALLEGED OBLIGATION TO MAKE A SPECIFIC RECOMMENDATION

73. The Appellants advance the case that the DAO erred in law because she failed to specifically recommend the provision of specific services by specified dates. It is said that, once a decision was made to vary the CO’s finding, “there should have been a recommendation in respect of the provision of outstanding services within a specified period of time…” The Appellants’ position is that the DAO made a general recommendation and failed to make an enforceable specific recommendation for the provision of services as required by section 15(8)(f). This appears to be based – at least in part - on the reference in the Determination to section 15(8)(f).

74. During the hearing before me, the position of counsel for the Appellants was that this appeal largely hinges on section 15(8)(f). A new point raised in oral submissions was said to be central to the appeal, namely that, if there was an error in the Determination it needed to be formally corrected by way of section 18(21), which provides: “By notice in writing to the parties, the appeals officer may correct any mistake (including an omission) of a verbal or formal nature in a determination under this section.”

75. The DAO in reply notes that (a) section 15(8)(f) concerns the functions of the CO not the DAO;

(b) section 15(8)(f) is not a mandatory provision; (c) the 2005 Act does not mandate an outcome that the HSE be directed by the DAO to provide specific services by specific dates; (d) a supplemental affidavit was sworn by the Respondent in which she states that the reference to section 15(8)(f) in the Determination was in error and this should have been a reference to section 18(5); and (e) it would have been ultra vires for the Respondent to exercise powers or act pursuant to section 15(8)(f).

76. The overriding position of the DAO is not that the DAO cannot specify services or dates for their provision, but rather that she is not mandated by the 2005 Act to do so. The DAO also contends that the recommendation in Determination is enforceable on its terms, as it fixes a specific date by which a new service statement must be provided.

77. The submissions of the HSE on this point hinge on the permissive language of section 15(8)(f)

and the breadth of the discretion of the DAO under section 18(5). It is said that the Appellants misconceive the nature of the functions of the DAO and the DCO, as the DCO has a discretion to make recommendations, whereas the DAO makes a “determination”. It is also said that the nature of the determination to be made by the DAO is not imposed by the 2005 Act. Some emphasis was placed on the importance of correct use of the terminology in the 2005 Act (a point with which I agree).

78. The HSE points to the material change in the facts of this case, as an indication of precisely the type of case in which it may be appropriate not to make any recommendation, despite a finding of failure to provide a service. It is said that is a good example of why the Oireachtas conferred this discretion on the DAO with regard to the determinations to be made.

Assessment

79. This point of law hinges on the interpretation of the statutory role and obligations of the DAO.

The correct approach to statutory interpretation is as summarised by Murray J in A, B & C v Minister for Foreign Affairs [2023] IESC 10, [2023] 1 ILRM 335 (Dunne, Charleton and Woulfe JJ agreeing):

“The starting point in the construction of a statute is the language used in the provision under consideration, but the words used in that section must still be construed having regard to the relationship of the provision in question to the statute as a whole, the location of the statute in the legal context in which it was enacted, and the connection between those words, the whole Act, that context, and the discernible objective of the statute. The court must thus ascertain the meaning of the section by reference to its language, place, function and context, the plain and ordinary meaning of the language being the predominant factor in identifying the effect of the provision but the others always being potentially relevant to elucidating, expanding, contracting or contextualising the apparent meaning of those words” (at [73]).

80. Given the remedial nature of the 2005 Act, it is to be given a purposive interpretation, where this is appropriate and necessary. This was confirmed by the Supreme Court in JN.

81. In the case of the DAO, section 18 is the relevant section of the 2005 Act. As regards the content of the DAO determination, section 18(5) provides,

“The appeals officer shall make a determination in writing in relation to the appeal affirming, varying or setting aside the finding or recommendation concerned and shall communicate the determination (including the reasons therefor) to the applicant, the Executive and, if appropriate, the head of the education service provider concerned who shall comply with the determination.”

82. Before analysing the interpretation of section 18 (and the Supreme Court judgment in JN), it is necessary to consider the Appellants’ case that section 15(8)(f) imposed an obligation on the DAO to make a specific recommendation for the provision of services by specified dates.

83. Section 15 is headed “complaints officers”. It is premised on a complaint made under section

14 following the receipt of an assessment report or a service statement and includes the possibility of a complaint by an applicant in relation to “(d) the contents of the service statement provided to the applicant” or “(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.” The complaint in this case, issued on 21 October 2020, was stated to be made on the latter basis.

84. The Act requires that section 14 complaints be referred to a DCO under section 15, as occurred in this case.

85. Sections 15(8)(e) and 15(8)(f) then provide as follows:

“A report of a complaints officer may contain one or more of the following:

…

(e) if the report contains a finding that the contents of the service statement concerned are inaccurate or incorrect, a recommendation that the statement be amended, varied or added to by the liaison officer concerned within the period specified in the recommendation;

(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.”

86. When the plain language of this provision is read in its immediate statutory context, it is unanswerably the case that it is solely directed to the report to be prepared by a DCO. It is not concerned with the powers or duties of a DAO. Furthermore, the content of the DCO’s report is not mandated or directed by the Act: the language of section 15(8) is unambiguously permissive only. The Appellants in their submissions refer to section 15(8)(f) as a mandatory requirement, but that interpretation is at odds with the plain language of the sub-section and is rejected.

87. In short, I do not accept that section 15(8)(f) is open to the intepretation that it applies directly to a DAO or that it imposes a mandatory requirement. The interpretation attempted in this case

– that it imposes a mandatory obligation on the DAO to specifically recommend the provision of specific services by specified dates – finds no support in the 2005 Act and is contrary to the plain language of that statute.

88. I have no hesitation in rejecting this point of law.

89. To overcome one of these hurdles (the application of the provision to the DAO), the Appellants rely heavily on the express reference to section 15(8)(f) in the Determination. It is said in oral submissions that, if the DAO wished to correct a typographical error, this comes within the scope of “any mistake (including an omission) of a verbal or formal nature” within the meaning of section 18(21) and needed to be done “by notice in writing to the parties”. It is contended that there was no such statutory notice and the Determination cannot be altered by way of the affidavit sworn by the Respondent on 28 August 2025.

90. I do not regard this as a good ground of appeal or basis to uphold the primary ground of appeal that section 15(8)(f) was applicable to the DAO’s Determination. The formulation of section 18(21) is certainly curious, referring as it does to a mistake “of a verbal or formal nature”. The parties to the appeal before me did not address the interpretation of this specific language. In another case, there may well be more detailed consideration of its correct scope. Given the limited submissions made on this point, I will proceed on the basis that section 18(21) could include a typographical error of the form asserted by the Respondent here, without determining the correct interpretation of that provision.

91. I have considered the affidavit sworn by the Respondent and she states simply that the reference to section 15(8)(f) was “erroneous”, “a typographical error”; that “it ought to have read section 18(5)”; and that it was “a bona fide mistake on my part”. There was no challenge to these averments and no application to cross-examine the Respondent in respect of them. I have no reason to doubt their credibility or veracity. Further, as I have already found, section 15(8)(f)

is applicable to the DCO alone, with section 18 governing the function of the DAO. It would have been anomalous and ultra vires for the DAO to purport to act on foot of section 15. I accept that this reference was a typographical error and that it may be regarded as a mistake of a “formal nature” in the context of this appeal (although I have a misgiving as to whether it even reaches that threshold).

92. The next question is the requirement of “written notice”. The parties to this appeal did not point to any formal steps or process that must be followed to notify the parties of a mistake or error under section 18(21). Given the lack of any guidance or specificity in this respect, the question that arises is what form of “notice” is intended. In this case, the affidavit of the Respondent of 28 August 2025 was late in terms of the appeal (coming just four weeks before the hearing of the appeal). However, there is nothing in the Act which limits or prescribes how “written notice” may be furnished. I do not accept that the affidavit is necessarily insufficient as a means of providing “written notice” of an error in the Determination, given that it was a typographical error. While it is clearly less than ideal that a determination would be corrected during, and at a well-advanced stage, of the appeal against a determination, the Appellants did have written notice of the correction and, for the purposes and in the context of this appeal, I accept that this suffices for section 18(21).

93. Even if notice in advance had not been furnished, I do not believe there is any available interpretation of section 18(21) which would result in the DAO being bound by section 15(8)(f)

or found to have failed to have acted in accordance with that provision. The consequence of not correcting a typographical mistake, could not be the conversion of a provision that confers a discretion on a DCO to a provision that imposes an obligation on a DAO. It would have been incorrect and beyond the scope of her powers for the DAO to exercise her functions pursuant to section 15 and it would be equally incorrect to apply that provision to an appraisal of the DAO’s Determination.

94. When section 15(8)(f) is stripped away, the Appellants’ point of law is that the DAO was obliged pursuant to section 18 by the 2005 Act to make specific recommendations for the provision of specific service by specific dates. This point was not heavily pressed by counsel for the Appellants (the focus of the case being firmly on section 15(8)(f)). To assess this point, it is necessary to first consider the relevant provisions of Part 2 of the 2005 Act and then to consider the judgment of the Supreme Court in JN interpreting those provisions.

95. Following an assessment report, the next step is that the LO must prepare a service statement “specifying the health services or education services or both which will be provided to 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” (section 11(2)). This is the function of the service statement.

96. In preparing this statement, the LO shall have regard to “the practicability of providing the services identified in the assessment report” (section 11(7)(d)) and “the need to ensure that the provision of the service 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” (section 11(7)(e)). Regulations made under the Act (S.I. No. 263/2007 - Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007) provide, in Regulation 18, that

“The service statement shall be written in a clear and easily understood manner and it 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;

(f) any other information that the Liaison Officer considers to be appropriate, including the name of any other public body that the assessment report may have been sent to under section 12 of the Act.”

97. The detail of the services to be provided are therefore contained in the service statement. A complaint may be made under section 14 arising from the “content of the service statement” or from the failure to provide services. The DCO then investigates the matter and must give an opportunity to be heard to the complainant, the assessment officer concerned, the LO, the education service provider concerned, and any other person having an interest in the matter.

98. The DCO has the power under section 15 to recommend that the service statement be amended, varied or added. The report “may contain” the following:

“(e) if the report contains a finding that the contents of the service statement concerned are inaccurate or incorrect, a recommendation that the statement be amended, varied or added to by the liaison officer concerned within the period specified in the recommendation;

(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 15(8)).

99. As will be seen, it is firmly established in JN that the DCO does not have the power to amend the service statement.

100. An appeal can then be brought to a DAO against a finding or recommendation of the DCO.

This stage of the process is governed by section 18, which confers on the DAO extensive powers of investigation, but the ultimate function is to “make a determination in writing in relation to the appeal affirming, varying or setting aside the finding or recommendation concerned” (section 18(5)). So, while the DAO has extensive powers of investigation, his function is limited to making a determination on foot of a DCO’s finding or recommendation (see JN at [51]).

101. A final statutory provision of note is section 22 which provides for the possibility of an application to the Circuit Court if there is a failure to implement a recommendation of a DCO or a determination of a DAO. The Appellants attach some weight to this provision, but I do not consider that it alters the correct interpretation of the role of the DAO or leads to a mandatory requirement that the DAO must make specific recommendations for the provision of services by a specified date or dates, as argued by the Appellants here.

102. Turning to JN, in that case, not dissimilarly to this one, the service statement issued in August 2020 gave March 2023 as the start date for the provision of various services to address the child’s needs. A complaint was made under section 14(d) challenging the accuracy of the service statement (rather than a complaint of failure to provide services under section 14(e), as here). The complaint was rejected by the DCO, who upheld the statement as correct and accurate and “within the realms of” the 2005 Act. The DAO determined that “the jurisdiction of the Appeals Officer is outlined in the Disability Act and in that context the Appeals Officer does not have jurisdiction to make a determination in relation to the dates for provision of any services that are outlined in a service statement.” During the hearing in the Supreme Court, the DAO’s position was that he simply did not have jurisdiction to make any determination or recommendation in relation to the dates for provision of any services.

103. The High Court, and the Supreme Court on appeal, rejected the DAO’s view of his jurisdiction.

Some important points emerge from the judgment of the Supreme Court (Dunne J., with O’Donnell CJ, Charleton, Woulfe and Hogan JJ. agreeing): first, the DAO “can only make a recommendation to amend, vary or add to the service statement, as opposed to directly altering the service statement itself, and that it is only the Liaison Officer who can alter, amend, or vary the service statement” (at [73]). The DCO cannot amend the service statement. This is described by Dunne J as a “significant point” (at [47]).

104. Second, this does not mean that the DAO cannot consider the dates by which the services are to be provided. On the contrary, the Supreme Court determined that the DAO in that case took an “overly restrictive view of the powers contained in the Act, and that it was simply wrong to say that there was no jurisdiction to consider the dates by which the services were to be provided” (at [74]).

105. Dunne J. concluded unambiguously that, “There is no doubt in my mind that an appeals officer is entitled to interrogate issues such as the date when a particular service could be provided and, equally, is entitled to interrogate the question as to whether or not those services could be provided elsewhere in the relevant functional area of the HSE” (at [71]).

106. The DAO may investigate the availability of services and the attainable dates for the provision of services so as to decide the correct outcome of the appeal, but the use of those powers to ascertain the correct outcome of the appeal does not dictate or mandate that the DAO must go on to prescribe the services and dates by which they are to be provided.

107. Third, the Supreme Court noted that, “If there was an error in the service statement as to the date on which services could be provided, that must be corrected by means of a recommendation” (at [74]). This was based on the nature of the complaint in JN, which was a complaint under section 14(d) that there was an error. This is not the applicable basis for the complaint or the appeal in this case. In any event, I am satisfied that it cannot be read as imposing an obligation on a DAO to make a determination recommending the provision of specific services by a specific date. Rather, that statement must be read in light of the other findings in the judgment, including the important findings that the DAO (and the CO) have no power to directly amend the service statement. If the DAO finds that the DCO has erred, this should be corrected “by means of a recommendation”, but this does not mean that the DAO determination can directly amend the service statement or that the DAO must include any specific recommendation for the provision of services by a given date or dates. The Court did not – and could not – direct the DAO as to how an identified error should be addressed.

108. I see no basis in the 2005 Act, or in the judgment of the Supreme Court in JN, to find that the DAO is under an obligation to make a recommendation that specific services must be provided by a specific date. Of course, if the DAO identifies an error by the DCO or finds that services were not fully provided (as here), there could be a determination to set aside or vary the DCO’s recommendation or finding. This is what has occurred here. A failure has been identified and the determination of the DAO is that the DCO recommendation should be varied and the matter should be remitted to the LO with a recommendation that the LO (who is the only person who can amend the service statement) must prepare an amended service statement by 23 April 2025 which “must include a consideration of all available service provision options to ensure that the services specified in [the] service statement can be provided or provided in full at the earliest date”.

109. The overarching point is that the DAO has the discretion as to whether the report affirms, varies or sets aside the finding or recommendation of the CO. The appeal to the DAO in this case asked the DAO to set aside the finding of the DCO and make a determination that the services must be provided within a specified period of time “or, alternatively, to remit the matter to the DCO with a direction that the DCO do so”. The latter course of action was adopted by the DAO.

110. This decision does not in any way detract from the breadth of the powers or discretion conferred on the DAO by the 2005 Act, as examined by the Supreme Court in JN. In a given case, a DAO may well decide to exercise the discretion conferred by the 2005 Act by making a determination which does vary the DCO’s recommendation by reference to specific services and dates (which would then need to be introduced by means of a service statement). The point is that the 2005 Act imposes no obligation to do so.

111. The DAO in this case decided to vary the DCO recommendation and remit the matter to the LO and I can see no basis for finding this recommendation to be erroneous as a matter of law.

112. I would also note that the important judgment of Quinn J in EL v. Office of the Disability Appeals Officer [2023] IEHC 709 confirms that the DAO should in an appropriate case interrogate the availability of necessary services including by private providers at an earlier stage than the services could be provided by the HSE. This did occur – albeit to a somewhat limited extent – in the Determination. Indeed, the DAO in this case quotes the judgment of Quinn J. that “service providers could include… community groups, voluntary groups, and indeed any number of private service providers” in making the determination to remit the matter. The outcome is now overtaken by the 2025 service statement.

SECOND GROUND: IRRATIONALITY

113. The Irrationality Ground advanced by the Appellants was that, in light of the determination that the LO failed to consider the provision of services by third party service providers, it was irrational for the DAO to remit the matter rather than making a substituted set of specific recommendations. Significant weight was attached to the issue of delay and the powers of investigation conferred on the DAO. Before assessing this ground, it warrants emphasis that this ground is limited to the content of the recommendations: the findings made by the DAO are in favour of the Appellants and welcomed by them.

114. I do not consider this irrationality ground of appeal to be meritorious for several reasons.

115. First, the DAO does not have the power to amend the service statement and I have already found that there is no mandatory obligation to formulate specific recommendations as to the provisions of services. It was within the scope of the reasonable options available to the DAO to remit the matter to the LO for the preparation of a new service statement, as occurred here.

116. Second, the LO and DCO in this case have been found to have failed to undertake the necessary or appropriate enquiries to ascertain the availability of resources. Following JN, the DAO correctly found and identified a failure in this respect. Given that the LO prepared the service statement on a premise which has been found to be flawed, I fail to see any ground on which a

decision to remit the matter to the LO to allow the correct assessment to take place can be said to be irrational and no convincing case was presented to that effect. The decision to remit the matter is well within the bounds of rational choices available to the DAO.

117. Third, there is no suggestion here that the DAO misunderstood her jurisdiction or her role or that she erred in failing to properly interpret the scope of her powers (as arose in JN). The finding by Dunne J. was that:

“There is no doubt in my mind that an appeals officer is entitled to interrogate issues such as the date when a particular service could be provided and, equally, is entitled to interrogate the question as to whether or not those services could be provided elsewhere in the relevant functional area of the HSE. That did not happen here” (at [71]).

118. By contrast, the DAO here did undertake some enquiries as to whether the services could have been provided by private service providers (contacting nine such providers in the relevant area related to services in 2000/2001), concluded they had shorter waiting times, and remitted the matter to the LO to consider all available service provision options.

119. Fourth, the DAO was aware that there was a review of the needs of the child underway (as recited in the Determination) and this undermines the assertion that it was irrational to remit the matter to the LO for a new statement to be prepared. As matters have transpired, a recommendation by the DAO for specific services to be provided by specific dates to address the 2020 Assessment would likely have been displaced by the new 2025 Service Statement that needed to be prepared pursuant to the 2024 Assessment in any event. This illustrates the artificiality (and futility) of this appeal and is a good justification in fact for the determination and recommendations made by the DAO.

120. Fifth, the Appellants criticise the DAO for assessing the services available in 2000/2001, as if the matter was frozen in time. However, this highlights the difficult impact of delay and changed circumstances in this case. There was delay by the DAO in making the Determination, and there was clearly significant delay in the statutory complaints process as a whole. By the date of the Determination, there was a review of needs underway. There was no suggestion that the DAO could recommend services to deal with the 2024 Assessment (and indeed the Determination appears to have been made in ignorance of that new assessment report), but yet counsel for the Appellants contends that the investigation based on the 2020 Service Statement should be based on current facts. There is an incongruity here. It arises at least in part from the very specific circumstances of this case, in which there was extended delay, during which there were important clarifications of the role of the HSE and the DAO in JN and in EL, as well as the new assessment of the child’s needs.

121. However, taking this submission at its height, if the DAO investigated the availability of private services in January 2025 to meet the 2020 Assessment and made specific recommendations for the provision of those services (as the Appellants’ counsel suggested ought to have occurred), this would have overlapped with – and been overtaken by – the 2024 review of his needs and, ultimately, the 2025 service statement. In all of these circumstances, the most reasonable and appropriate outcome and that which is consistent with the 2005 Act and – most importantly – with the needs of the child, is that the services required to meet the child’s needs as now understood are provided. The remittal of the matter to the LO did assist in the attainment of that outcome and I do not see any irrationality in that determination.

122. Finally, the alternative outcome sought by the Appellants in the appeal to the DAO was that the matter be remitted to the CO. This undermines the complaint that remittal was irrational.

123. I would also note and accept the submissions by the Respondent and the HSE that, while there has been “regrettable” delay in this matter, that is not a ground of appeal against the determination of the DAO.

124. Apart from the general irrational arguments advanced, the Appellants sought to argue under the heading of the Irrationality Ground that the DAO failed to have regard to the matters identified in section 11(7). I have already found that this ground is not properly within the scope of the notice of motion and it is rejected on this basis. However, as it was argued during the hearing, I will determine this issue for completeness.

SECTION 11(7)

125. The Appellants complain that the DAO only assesses the LO’s consideration of section 11(7)

and not her own and conducts no independent analysis of the services to be provided, which is said to fall short of the requirements of section 18(20). It is also contended that this cannot have been intended by the Oireachtas. The only matters in section 11(7) which were focused upon were sections 11(7)(d) and 117(e).

126. The DAO places emphasis on section 18(20) and contends that the legislation should refer to “the matters referred to in section 11(7)(a)-(f)” if the DAO was required to consider the factors listed in section 11(7). It is said that the obligation to have regard to the factors in section 11(7)

rests only on the CO. Reliance is placed on JN.

127. The DAO’s counsel also submitted that the obligation of the DAO to have regard to section 11(7)(d) and (e) does not arise in this case, as there was no determination made based on budgets or practicality (such as the factors listed in sections 11(7)(d) and (e)). There was no question in this case of the services not being affordable or practical. The DAO determined that the LO failed to properly have regard to section 11(7) and the findings made were being varied on this basis. It was said that the DAO Determination was made “resources-blind”.

Assessment

128. The first question is one of statutory interpretation. Section 18(20) provides that,

“Before deciding an appeal under this section the appeals officer shall consider the following:

(a) the relevant notice under subsection (3);

(b) any relevant information obtained pursuant to subsection (6), (7) or (8);

(c) the evidence presented and any representations made at an oral hearing (if any);

and

(d) the matters referred to in section 11(7).”

129. The language of section 18(20) is mandatory and requires the DAO to consider “the matters referred to in section 11(7)”.

130. Section 11(7) then provides,

“Without prejudice to the generality of subsection (2), in preparing a 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 place in the State in relation to the services identified in the assessment report,

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

(e) in the case of a service to be provided by or on behalf of the Executive, the need to ensure that the provision of the service 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,

(f) the advice of the Council, in the case of a service provided by an education service provider, in relation to the capacity of the provider to provide the service within the financial resources allocated to it for the relevant financial year.”

131. The Respondent’s interpretation that section 18(20) does not require the DAO to have regard to the matters listed in section 11(7) is not persuasive or consistent with the language of that provision. Moreover, the Supreme Court in JN determined that,

“I accept that the Appeals Officer also has to bear in mind the provisions of s. 11(7)

and what is, in fact, the availability of the services required in any given case. Services cannot necessarily be provided as and when required if the resources necessary for the provision of those services are not available” (at [75]).

132. This paragraph of the Supreme Court indicates that the factors in section 11(7) must be weighed so as to ensure that any determination by the DAO (which is itself enforceable) does not necessitate or result in the services required in the service statement being ones which it is impractical or excessively costly to provide. The DAO must weigh those factors listed in section 11(7) to ensure that the determination is workable in a manner consistent with the Act.

133. In light of the plain language of section 18(20), read in its context, and the decision in JN, I reject the contention that the DAO was not obliged to consider the individual factors listed in section 11(7). I also note that it is not the position adopted in the Determination, which states that “I am obliged to consider Section 11(7) of the Act”.

134. Turning then to the facts of this matter, in the Determination itself, the DAO states that she “considered… the matters referred to in s. 11(7), particularly the extent to which the liaison officer, in preparing the service statement concerned, had regard to the factors set out at s.

11(7)(a)-(e)…”.

135. It is apparent from the Determination that the DAO did consider the factors listed in section 11(7) (although the language and formulation of the Determination is not as clear as it could be in this respect). While she asked the question of whether the LO had regard to the practicability of providing the services within the meaning of section 11(7)(d), the DAO did also consider the issue herself, referencing “enquiries…. from this office” as to the practicability issues. The Determination records that,

“As part of my investigation requests were made to nine private service providers in the CHO9 and/or surrounding areas for information relating to 2020 and 2021 services. By date of this determination information received from three private service providers indicated that wait times ranged from 6 to 12 months for Speech and Language therapy and from 2 weeks to 8 weeks for Occupational Therapy during 2020 and 2021.”

136. In relation to section 11(7)(e), the DAO did again ask whether the LO had regard to this factor (namely the need to ensure that the provision of the service would not result in any expenditure in excess of the the amount allocated to implement the approved service plan of the Executive for the relevant financial year). The Determination then records that “the HSE did not provide any reference to budget or financial issues as a reason for service delays. The Liaison Officer, in preparing the service statement did not reference budget or financial issues in the service statement as a reason for service provision delays.” The Determination refers to the DAO having requested comment from the HSE on the appeal and no such comment having been received.

137. As the Respondent pointed out in submissions, section 11(7)(e) simply had no application here. There bears some resemblance to the judgment in JN:

“I accept that a matter that is required to be taken into account in preparing a service statement is the need to ensure that the provision of services does not result in an excess of expenditure in relation to the amount allocated in any given year. That is expressly provided for in the 2005 Act, and therefore is a factor to be borne in mind. Nevertheless, I feel that there is no real suggestion in this case that could have given rise to any concerns in relation to s. 11(7)(e)” (at [61]).

138. A similar conclusion is urged by the DAO here, and appropriately so. I do not believe that the argument that the DAO failed to consider the matters in section 11(7) has merit in this case (even if this point is properly part of the appeal, which I am satisfied it is not).

ALLEGED ERROR OF LAW REGARDING START DATES

139. In the Determination, the DAO states that “[w]hile the specified service start dates in the service statement had not yet passed at the time of the original complaint, I find these dates could have potentially been set earlier for Speech and Language Therapy and Occupational Therapy, had other service providers been considered.”

140. The Appellants contend in their written submissions that, by this statement, the DAO erred in law and that this error “appears to go to the heart of the Respondent’s findings”.

141. I consider this point to have no substance in law or in fact.

142. First, the observation was factually accurate: the complaint was made on 30 October 2020, and the two start dates specified in the service statement were December 2021 and January 2023.

143. Second, there is no suggestion in that Determination that any finding – or even comment - adverse to the Appellants was being made regarding the timing of the complaint. In particular, there is no hint in the Determination that the complaint was not validly made because the date for the provision of services had not passed.

144. Third, I read this as a statement that confirms the conclusion – in favour of the Appellants - that the DCO erred in not fixing earlier dates for the provision of the recommended services.

There is no question of it being a finding that is adverse to the Appellants.

145. This ground of appeal is unstateable.

CONCLUSIONS

146. None of the points of law advanced in this appeal (and even the points which I have found are not properly part of the appeal) identify an error of law which warrants interfering with the DAO’s Determination or provides a basis to grant the relief sought by the notice of motion.

147. I make these findings having assessed and determined the merit of each of the substantive points of law argued, but I repeat my dissatisfaction at the time and resources of the parties and the Court being taken up with this appeal, and my significant doubts as to the benefit that could have been gained by the Appellants from its pursuit, even if successful.

148. The assessment process under the 2005 Act should be – and is intended to be – a process that may be reviewed and evolve with the child’s needs. The overriding objective is to ensure the totality of the needs of a child as they are most recently assessed and understood are met by the appropriate services. While it is readily apparent that there were regrettable delays and failures in providing services to address the 2020 Assessment, as found in the Determination itself, the priority should be ensuring the child now has the services he needs. I fail to see how this appeal advances that objective or how the interests of the child or his mother were served or even engaged by maintaining this appeal to the 2020 service statement, based on a (then) materially different assessment of his needs.

149. I will list the matter before me at 10.30am on 20 January 2026 for the purposes of hearing the submissions of the parties as regards the allocation of costs and making final orders.