Supreme Court dismisses HSE appeal, holding service statements lacked required detail on IFSP goals and professional involvement.

THE SUPREME COURT

[2025] IESC 26

S:AP:IE:2024:0000065

Dunne J. Charleton J. O’Malley J. Hogan J. Donnelly J.

IN THE MATTER OF AN APPEAL UNDER SECTION 20 OF THE

DISABILITY ACT 2005

Between/

RY AND ZR (A MINOR SUING BY HER MOTHER AND NEXT FRIEND RY)

Appellants/Respondents

AND

DISABILITY APPEALS OFFICER

Respondent/Notice Party

AND

HEALTH SERVICE EXECUTIVE

Notice Party/Appellant

Judgment of Ms Justice Iseult O’Malley delivered the 4th day of June 2025

Introduction

1. This is an appeal by the Health Service Executive (“the HSE”) against a decision of the High Court delivered on the 11th January 2024 (Bolger J. – see [2024] IEHC 8). The HSE is a notice party in the proceedings. The named respondent, the appeals officer, was separately represented in the High Court but did not participate in the appeal.

2. The central issue in the appeal concerns the obligations of the HSE, under the provisions of the Disability Act 2005 as amended, in respect of the process for the assessment of the needs of persons with disability and the subsequent delivery of services to them. The process includes an obligation to specify what services will be provided to those persons and when such services will be provided. In brief, Bolger J. held that the statutory requirements had not been complied with in the case of Z, a child who has been assessed as having global developmental delay and autistic spectrum disorder. The trial judge found that the only “service” in respect of which the appellant specified a timeframe for delivery, the development of an Individual Family Service Plan, was not a “clinical service”.

3. Bolger J. also held that the reasons given by the appeals officer for rejecting the complaint made on behalf of ZR were inadequate – that aspect of the decision has not been appealed.

The statutory background

4. The Long Title of the Act states in relevant part that it is “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 the 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…”

5. “Disability”, in relation to a person, is defined in broad terms in s.2 as meaning “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.” For the purposes of Part 2 of the Act (which deals with assessment of needs, service statements and redress, and with which the Court is principally concerned in this case) s.7 further defines a “substantial restriction” 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”.

6. The word “service” is defined very broadly in s.2 as meaning “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”. Without prejudice to the generality of the foregoing, it includes the use of any place or amenity owned, managed or controlled by a public body, the provision of information or an information resource or a scheme or an allowance or other benefit administered by a public body, any cultural or heritage services provided by such a body, and any service provided by a court or other tribunal.

7. For the purposes of Part 2 of the Act, s.7 defines a “health service” as a service (including a personal social service) provided by or on behalf of the HSE.

8. An application for assessment and the provision of services commences with an application by or on behalf of the person. An “assessment”, in this context, means an assessment undertaken or arranged by the HSE to determine, in respect of a person with a 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.

9. Section 8 provides for the appointment and functions of assessment officers. These persons, who are to be independent in the performance of their functions, may assess applicants themselves or arrange to have assessments carried out by other employees of the HSE or by other persons with appropriate experience. (A separate procedure is prescribed where the officer is of opinion that an education service may be needed.)

10. The HSE is obliged under s.9(5) to cause the assessment to be commenced within three months and to be completed without undue delay. A person may apply for a further assessment if there has been a material change of circumstances, or further information has become available relating to either the personal circumstances of the applicant or to the services available to meet their needs, or a material error has been identified in the original assessment report.

11. Section 8(5) requires the assessment to 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”. This has been described in various judgments as meaning a “gold standard”, “utopian”, “aspirational” or “resource blind” assessment.

12. The assessment officer must prepare a written report. Section 8(7) provides that the contents of the assessment report must set out the findings of the assessment officer together with determinations in relation to a number of matters. The first is whether the applicant has a disability. If so, the officer must provide

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

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

(iii) a statement of the services considered appropriate, by the person or persons who carried out the assessment, to meet the needs of the applicant, the period of time ideally required by that person or persons for the provision of those services and the order of such provision, and

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

13. Section 8(8) provides, inter alia, that an assessment officer is to endeavour to ensure that the applicant is communicated with in a manner that facilitates appropriate participation by them in the assessment and that note is taken of their views in relation to their needs or preferences in relation to the provision of services. The applicant is to be given adequate information relating to the assessment process and the results of the assessment.

14. Section 10 obliges the HSE to ensure that the assessment is carried out in a manner that conforms to such standards as may be determined by a body identified by regulations for that purpose. Under the Disability (Assessment of Needs, Service and Redress) Regulations 2007 (S.I. 263/2007 – “the 2007 regulations”) the Health Information and Quality Authority is the body responsible for determining and approving the applicable standards.

15. When complete, the assessment report is furnished to, inter alia, the applicant and the HSE. The next stage of the process is governed by s.11, which provides for the functions of liaison officers. (These are authorised employees of the HSE. Unlike assessment officers, they are not required to act independently.) Section 11(2) of the Act, which is of central importance in this appeal, provides that where the report includes a determination that the provision of health services or education services would be appropriate for the person, a liaison officer shall prepare a “service statement”. The service statement is to specify “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.” (Emphasis added.)

16. Under the 2007 regulations the service statement is to be written in “a clear and easily understood manner” and must specify inter alia:

(a) the health services which will be provided to the applicant;

(b) the locations where the health service will be provided;

(c) the timeframe for the provision of the health services; and

(d) the date from which the statement will take effect.

17. It must also include any other information that the liaison officer considers to be appropriate.

18. Section 11(7) reads as follows:

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 [i.e. the HSE], 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) [Omitted].

19. It is clear that the content and outcome of the service statement may, in principle as much as in practice, differ materially from the recommendations made in the “resource blind” assessment report.

20. Section 13 of the Act obliges the HSE to maintain records for the purposes of

(i) identifying persons to whom assessments or services are being provided,

(ii) identifying those services and the persons providing the services,

(iii) specifying the aggregate needs identified in assessment reports which were not included in service statements,

(iv) specifying the number of persons to whom services identified in assessment reports have not been provided, and

(v) planning the provision of those assessments and services to persons with disabilities.

21. The HSE must submit regular written reports to the Minister in relation to the aggregate needs identified in assessment reports.

22. Under s.14 of the Act, a complaint about the service statement may be made by or on behalf of an applicant to a complaints officer. Possible grounds for complaint include the contents of the statement and a failure to provide, or to provide fully, a service specified in the service statement. In such circumstances a complaints officer (or, on appeal, an appeals officer) can recommend provision of that service within a specified period. If the HSE fails to implement the recommendation within three months the applicant or the appeals officer can apply to the Circuit Court for an order directing implementation. Complaints officers can, if of the opinion that a service statement is inaccurate or incorrect, recommend that the statement be amended, varied or added to by the liaison officer.

23. Section 18 provides for an appeal to the appeals officer from the finding or recommendation of the complaints officer. The appeals officer must give a reasoned decision in writing and may affirm, vary or set aside the finding or recommendation concerned. Thereafter, an appeal may be brought to the High Court on a point of law (s.20).

Factual background

24. Z was born in early 2017. In April 2019 her mother R made an application on her behalf for an assessment of need. That process did not begin until November 2020 (delays going well beyond the three-month period prescribed by s.9(5) of the Act are a noticeable and recurring theme in the cases that have come before the courts). It was carried out by a HSE “assessment of needs team” (“AON”) comprised of an occupational therapist, an educational psychologist and a speech and language therapist. It culminated in a multi-disciplinary report dated 18th December 2020. (In the meantime, Z had been referred to the Children’s Early Years Disability Service. This service had, at the time, lengthy waiting lists.)

25. The multi-disciplinary report is described in paragraph 12 of the judgment of Bolger J. as follows:

“12. [The appellant's assessment of needs of 18 December 2020 was an extensive, multidisciplinary assessment conducted by an occupational therapist, an educational psychologist and a speech and language therapist.] The assessment is set out in a detailed 24 page document. At page 1 the sources of information are identified, including documents forwarded by the assessment officer, an interview with Z's parents, clinical observation and a letter from Z's creche. Ten assessment tools that were used are listed. A summary of preliminary information compiled from information available prior to clinical assessment includes information from the assessment officer interview, the assessment of need application form, previous reports from healthcare professionals and a parent information form. Section 2 refers to the use of clinical interview, observation and/or assessment using a questionnaire or formal assessment tools. Reference is made to information provided by Z’s mother on 17 November 2020 during a face-to-face appointment. There was also information obtained from the staff of Z's creche by way of a form completed on 23 September 2020 and a letter from the staff of the creche dated

13 November 2020. Section 2.4 sets out clinical observations made of Z when she attended at the clinic with her mother. Section 2.5 sets out an assessment of Z's speech and language which was conducted by observation and informal activities. There was an assessment of motor skills by observation during the assessment and consideration of reports from Z's mother, an assessment of sensory processing by way of a parent form and a further form completed by Z’s teacher, an assessment of adaptive functioning measured by parent and teacher versions forms, an assessment of cognitive function by assessment by the psychologist as well as information on file, parent report and a standardised measure of adaptive functioning, information from speech and language therapy and occupational therapy assessment as well as nonstandardised assessments and an assessment of social communication questionnaire completed by Z’s mother. Section 3 covered diagnostic assessment which gathered evidence for a diagnostic interview and semistructured diagnostic observation in addition to information collected from observation and interview noted previously. There was a diagnostic interview with Z’s caregivers, a structured diagnostic observational assessment by way of a BOSA (brief observation of symptoms of autism) administered with Z and her mother in the clinic setting and observed by the clinicians through an observation window, observation of Z in a naturalistic setting by way of reports from parents and teachers and the BOSA assessment which included Z's mother showing a number of short video clips of Z at home.”

26. The first sentence of this passage has been put in square brackets because the HSE suggests that the trial judge made the error of mistaking the multi-disciplinary report by the AON for the statutory assessment report by the assessment officer.

27. The multi-disciplinary report concluded that Z met the criteria for autism spectrum disorder and presented with global developmental delay. A number of recommendations were made, including access to psychology, speech and language therapy focussed on her communication, and occupational therapy to develop motor skills, self-care skills, play skills and sensory processing. The report also provided a range of practical information and advice for Z’s parents. The following passage occurs in an appendix:

“What are the needs of the child with developmental delay? The child with developmental delay has the same needs as any other child. All children benefit from a warm, secure and nurturing environment. They need to feel accepted with their individual patterns of strengths and weaknesses. This is important for the development of self-esteem, which builds confidence for learning new skills. Children with delays will usually take longer to develop new skills than their same age peers. Many children with developmental delay will need extra help in one or more areas of their development.

They need:

• To hear language appropriate to their level of understanding,

• Extra time to learn and practice new skills,

• To have tasks simplified,

• To know that their efforts are valued, and

• A variety of ways to learn, such as touching, looking and listening.

Therapists and teachers provide suggestions and advice but

children learn most skills from their family in the early years of life.

Professionals work in partnership with parents in intervention

programs/services, helping them understand their child’s

development and special needs.” (Emphasis added.)

28. The assessment officer issued an assessment report in January 2021. She firstly determined that Z had a disability as defined by the Act. Speech and language therapy (“SLT”) was identified as a health need, and SLT intervention targeting the development of Z’s communication and social interaction skills was recommended. It was noted that a programme such as Hanen “More Than Words” (a parent-led programme designed for children under the age of five with autism) might support Z’s parents to develop strategies to support the development of her communication skills.

29. The assessment officer also considered that Z would benefit from occupational therapy intervention targeting the support for development of fine and gross motor skills, self-care skills, play skills and sensory processing regulation. Her parents might benefit from informative therapy sessions about sensory processing and adaptive movement development.

30. It was concluded that Z would also benefit from a multi-disciplinary approach to promote her engagement, interaction and attention, sensory processing, motor skills and communication through play-based intervention (e.g. “DIR- Floortime”).

31. The services required in respect of these identified health needs were listed by the assessment officer as SLT, psychology and occupational therapy. It was recommended that each of the three therapies should commence in January 2021. The assessment was scheduled to be reviewed in January 2022.

32. The service statement was issued by the liaison officer on the 21st February 2021. The covering letter read, in relevant (redacted) part, as follows:

“As required by the Disability Act I am to provide you with a Service Statement specifying the health services which will be provided for Z to address the needs identified in her Assessment Report. The Service Statement is based on a number of factors including the needs identified in the report and the resources available to provide the services required. Having consulted with the service providers, I have prepared a statement (attached) outlining the services we can provide.

l understand Z was referred to the Children's Early Years Disability Service on 23rd May, 2019. This service currently has lengthy waiting lists for services. It is expected that Z will be seen for her first appointment which will focus on the development of her Individual Family Service Plan (IFSP) in September 2022. The start date provided is based on information provided by the Children’s Early Years Disability Service and reflects their current waiting times. Please note that this date will also be subject to change due to the effects of the current Covid 19 pandemic. The start date will be updated when Z’s Service Statement is reviewed in February 2022 or as additional information becomes available from the team… …If circumstances change or if additional resources become available, the legislation allows us to make changes to this Service Statement. If Z’s circumstances change, or there is a change in the service delivered to Z please contact me.”

33. It was noted in the body of the service statement that Z had been assessed as requiring a range of interdisciplinary supports, i.e. speech and language therapy, occupational therapy and psychology. The service provider was identified as the Children’s Early Years Disability Service.

34. Under the heading “Service to be provided in respect of assessed needs” the liaison officer entered “Development of an Individual Family Service Plan”. Under the heading “Actual Intervention”, it was stated that the first step would be “to develop goals through an Individual Family Service Plan and identify the specific interventions needed to support this”.

35. The nature of such a plan (referred to here as an “IFSP”) was not described in either the statement or the covering letter.

36. RY lodged a complaint to a complaints officer, claiming that the service statement did not comply with the Act. It was observed that the assessment report had been delayed, in that it had not commenced within the statutory period of three months. The principal concern, however, was stated to be the fact that an IFSP appeared to be “a planning process that culminates in a document that specifies a family’s desired outcomes for their child, resources, priorities and a plan of services to build on family strengths”. The quotation here was from a document entitled “Psychologists Working in Early Intervention Policy Document”, from the Brothers of Charity (Southern Services). RY saw this process as merely the setting out of the services required, in circumstances where the service needs had already been identified. Rather than setting out dates for actual intervention, therefore, the service statement simply set out dates on which another plan would be made. This was described as unacceptable and contrary to the statute.

37. It was further complained that the delay envisaged was unacceptable and not justified by budgetary constraints.

38. The complaint invited the complaints officer to make a recommendation that the service statement specify that occupational therapy, speech and language therapy and psychology were to be provided with a specific timeframe, reasonable for a young child with autism spectrum disorder, for each service.

39. The complaints officer reported in August 2021. She noted that the complainant was requesting a service statement with timeframes for each of the specific recommended services. However, she considered it to be clear from the information provided to the liaison officer by the service provider that such timeframes could not be set until Z commenced with their team, because the development of the IFSP would be the first step in identifying the specific interventions needed. At that point the service statement could be updated. While it was unfortunate that the service could not be provided any earlier, the contents of the statement were correct and accurate.

40. The complaints officer had asked the liaison officer for her response to the complaint. The following description of an IFSP was given by the liaison officer on foot of that request:

“An IFSP is not a document or process which can be undertaken in isolation or in advance of a service commencement date.

An Individual Family Service Plan is a collaborative and continually evolving document which details the family’s current goals, what has been worked on and by whom. Whilst the IFSP is the starting point for all intervention, it should only be completed when the relevant services can follow through with the necessary supports to meet the child's needs, as agreed and identified within the IFSP.

Unfortunately, the Children’s Disability Service in this area carries significant waiting times. This is a longstanding concern which the HSE is working to resolve. As you are aware, Children’s Disability Services are currently in the final phase of a national reconfiguration into Progressing Disability Services for Children and Young People. This new program will fundamentally change how we deliver services so that we have improved, co-ordinated, inter-disciplinary teams to meet the needs of children in the service.”

41. The complaints officer noted that the liaison officer was obliged to have regard to the matters set out in s.11(7). While it was unfortunate that the services could not commence earlier than the date specified by the service provider, the service statement complied with the Act by setting out that date.

42. RY appealed to the appeals officer. Among the points made in a lengthy submission sent on her behalf, it was reiterated that Z’s needs had already been identified. It was argued that it was contrary to the Act to envisage completion of an IFSP only when the service provider was in a position to follow through with the necessary supports. Z had been left at risk of the start dates of services being pushed back further when the service statement was reviewed. Staff shortages or lack of resources were not a defence – given the size of the available budget, it flew in the face of reason to assert that it was not practical to provide services to Z in a timely fashion. If lack of resources was to be relied upon, the HSE bore the burden of proof. The importance of early intervention in the cases of children like Z was urged.

43. The appeals officer was asked to determine that services must be properly listed in the service statement and provided within specified time periods.

44. In the HSE’s response (on the 17th January 2022) it was stated that an initial intervention was now anticipated within three to six months.

45. The appeals officer’s determination report was issued on the 31st January 2022. After setting out the background and the issues in the appeal, the findings were listed as follows:

"As a consequence of the investigation findings set out above, I make the following findings in respect of the issues raised by this appeal:

(a) I find that the Complaints Officer obtained information from the Liaison Officer in order to clarify the dates for the provision of services for Z. The Liaison Officer clarified what the Individual Family Service Plan entails and that this document is not commenced in advance of service commencement date.

(b) The Children's Disability Network Team 3 are working to reduce waiting lists.

(c) The Assessment of a child is carried out without any regard to the cost of or indeed the capacity to provide any service identified the Liaison Officer must have regard to the provisions of Section 11(7) when preparing a service statement.

(d) I find no basis for finding that the services should be provided any earlier than that outlined in the service statement.”

The High Court

46. The applicants commenced their appeal on a point of law by way of originating notice of motion issued on the 17th February 2022. In a grounding affidavit, RY deposed that she had been very unhappy about the service statement because it was not written in a clear and easily understood manner and it did not specify the timeframe for the provision of services. The only timeframe given was for the development of an IFSP, which was not a service identified in the assessment report. The service statement did not explain what it was or why it was necessary. RY said:

“Apparently, the purpose of it is to develop goals and to identify the specific interventions needed to support this, but the interventions have already been identified in the assessment summary and the assessment report. I am very worried that all the IFSP process will do is delay the delivery of the necessary services in circumstances where the assessment report makes it clear that intervention is urgently needed…”

47. It should be noted that, while the proceedings were progressing in the High Court, interaction with service providers continued as described in an affidavit sworn on behalf of the HSE in February 2023. A revised service statement had been issued, on the 18th January 2023. This listed the actual interventions that had already taken place as follows:

• The IFSP had been completed in May 2022.

• Z had been receiving individual speech and language therapy

thereafter. There had been two School Visits for “carryover of

intervention strategies”. Z’s parents had agreed to attend the Hanen More Than Words Programme, commencing in January 2023.

• An occupational therapist had visited the school in December 2022 and provided recommendations.

• Z was on a waiting list for psychology intervention.

• RY had been provided with information about social work.

• The family had been offered a place on the ASCEND programme in September 2022.

48. Under the heading “Services to be provided in respect of assessed needs” the liaison officer entered “support from interdisciplinary team”. The service provider was now identified as the Children’s Disability Network Team (following on the restructuring of services for children with disabilities).

49. The document setting out the IFSP was exhibited, as was the Brothers of Charity Policy Document referred to above. I will describe these documents in detail in due course.

50. In their appeal to the High Court, the points of law argued on behalf of ZR and RY concerned, firstly, whether the inclusion in a service statement of a start date for an IFSP was sufficient compliance with the requirement in s.11(2) and regulation

18 to specify the timeframe for the services to be provided and, secondly, whether the appeals officer had given adequate reasons for his decision.

51. In respect of the first issue, Bolger J. considered that the question was whether or not the liaison officer was required to address the services identified in the assessment report, or could identify and focus on a different service. She noted that the very detailed and thorough assessment report had not recommended any further assessment or process in order to clarify what Z needed and how it was to be provided. Given the statutory nature of the assessment process, she thought it unlikely that it would have omitted reference to any such further assessment if it was considered necessary.

52. Bolger J. observed that a service statement could legitimately refer an applicant to another body for the provision of a service, and that such other body might carry out its own assessment for the purpose of determining how it could best cater for the person’s needs within its own framework. However, she took the view that in such a case the further assessment would still have to relate to the needs already identified under the s.7 process. The services required by the Act to be provided were in respect of those assessed needs. This did not, of course, mean that there was an enforceable right to any service recommended in the assessment report since it was for the liaison officer to consider whether or not it was practicable to provide a particular service in a particular timeframe.

53. The Brothers of Charity policy document was part of the evidence put before the High Court. As well as the quotation referred to above, Bolger J. referred to this passage:

“It is the task of professionals in family centred early intervention to facilitate the development of partnerships and to support families in identifying and addressing their own concerns. The extent of assistance that families may require will vary between families so an individualised approach is needed. For example, a well-functioning and well-resourced family may be able to identify their own strengths, resources and needs and require little assistance in planning for their child and family. The level of input in planning and intervening from a professional would be minimal. On the other hand, a family that has fewer resources and higher levels of stress and disorganisation may require lots of assistance to identify their strengths, resources and needs. Assistance or support may range from positive reframing of negative statements about themselves and their family to direct parent training and how to orchestrate child-learning experiences for their child.”

54. Bolger J. noted that none of the parties had taken issue with the definition of an IFSP and that it seemed to be agreed that it was a process of supporting a family and identifying and addressing their concerns. She observed that there was nothing in the case to suggest that Z’s family were not well-functioning, well-resourced and able to identify their own strengths, resources and needs.

55. In paragraph 33 of the judgment Bolger J. stated that the development of the IFSP to determine the identification of and expected timeframe for further intervention sat “uncomfortably” with the statutory right of Z and her parents to be told when they would receive the services that had been identified as needed. According to the service statement, the IFSP would determine both the interventions needed and the timeframe for their delivery. This, in her view, did not comply with the clear statutory requirements for the content of a service statement.

56. Bolger J. determined, by reference to the Brothers of Charity document, that an IFSP was not a “clinical” service. The IFSP was apparently going to determine what services were needed and when they would be provided, even though the assessment had already identified the necessary services and they were acknowledged in the service statement. That being so, she considered that the service statement identified a new intervention, not mentioned or recommended in the assessment.

57. In paragraph 34 the trial judge stated:

“Specifying a timeframe for the provision of any of the services that three clinicians have identified in the assessment of needs cannot be sidestepped by interposing an additional process that is apparently intended to support the family to identify their own strengths, resources and needs (as per the Brothers of Charity policy statement). By doing that, the Service Statement has avoided responsibility for specifying a timeframe for the provision of any of the services recommended in Z’s assessment of needs.”

58. Here, Bolger J. cited the judgment of Phelan J. in C.T.M. v. Assessment Officer [2022] IEHC 131. That case concerned a so-called “standard operating procedure” that had been adopted by the HSE in 2020. The procedure involved a “preliminary team assessment”, which did not produce a diagnosis and could result in the identification of a diagnostic assessment as the “service to be provided” at a future date. Phelan J. held that this process did not comply with the statutory requirement that an assessment had to determine whether or not a disability was present and, if so, the nature and extent of such disability and to identify the services needed. She also found that the deferral of a full assessment, so that it was outside the Part 2 process, resulted in the removal or diminution of the statutory protection afforded through the policing of the assessment under the terms of the Act. (The Court of Appeal reached a similar conclusion in A.B. v. Health Service Executive [2023] IECA 275.)

59. Bolger J. saw what had happened in the instant case as reminiscent of CTM, in that the interposition of the additional process meant that the service statement avoided specifying a timeframe for the provision of any of the recommended services.

60. It was held that Z and her mother had a statutory right to be told when Z would receive the identified services, but the service statement said that the timeframe would be determined by the IFSP. This approach was not found to be consistent with the statutory scheme. Accordingly, Bolger J. found that there had been a breach of s.11(2) of the Act and regulation 18 of the 2007 regulations.

61. On the second issue, RY argued that the appeals officer’s decision was such that it was impossible to know why the appeal had failed. The appeals officer contended that the reasons were apparent from the documentation and the process as well as from the written decision. Bolger J. held that the officer had not engaged with the submissions filed on behalf of RY. The reference to efforts to reduce waiting list was not relevant to the issues, and nor was the fact that the liaison officer was obliged to have regard to s.11(7). The final statement in the decision, to the effect that the officer saw no basis for providing the services earlier than as specified in the service statement, misunderstood the entire basis of the appeal.

62. The order made allowed the appeal and remitted the matter to the appeals officer.

Submissions in the appeal

63. The appellant emphasises the statutory difference between the assessment report, which is prepared without regard to cost or capacity, and the constrained, practical nature of a service statement. This difference has been acknowledged in two previous judgments of this Court – J.N. v Harraghy [2023] IESC 9 and E.L.G. v Health Service Executive [2022] IESC 14.

64. The judgment of the High Court is seen as giving rise to two issues: - a) whether it is a requirement of the Disability Act that each health service identified in an assessment report be “specified” in a service statement; and b) whether the statutory requirements regarding the contents of service statements were breached by identifying development of an IFSP as a “specified” health service.

65. The HSE submits that reference in a service statement to “identified needs” in an assessment does not amount to a statement that those needs will be met by specified services to be provided, but is done in acknowledgement of the obligation imposed on the liaison officer to have regard to the assessment report; that a service statement is not required to specify all the services identified as appropriate in an assessment; that there is no prohibition on the inclusion in a service statement of a health service not referred to in an assessment; and that the service statement in this case complied with the Act in that it specified the time period within which an identified health service, the IFSP, would be provided. The IFSP was clearly identified as the entry point for the multidisciplinary services identified in the assessment.

66. It is submitted that the effect of the High Court judgment is that a failure to specify, in a service statement, services to meet the needs that had been identified in the assessment has become a ground for a statutory complaint. This, it is argued, has the effect of rewriting s.14. Such an outcome contradicts the statutory differentiation between the assessment and the service statement. The legislature has provided for an enforcement mechanism in respect of the latter but not the former.

67. The HSE argues that there is no statutory basis for the use by the High Court of the term “clinical service” and that an IFSP is a “health service” within the meaning of the Act. The comparison with C.T.M. is rejected, on the argument that an IFSP is not a further assessment of need and does not in any way supplant or amend the assessment report. It is submitted that it was an appropriate intervention in this case, being a rational method of facilitating access to available services which applicants and their families consider would best assist them, while a child with complex needs was waiting for the delivery of services by the multidisciplinary team.

68. In oral submissions, it has been argued that no service should be included in the service statement if a date cannot be given for its commencement, and that the service statement here complied with s.11 by setting out the only service for which a time could be given.

69. The respondents submit that the scheme provided for in the Act is as follows:

a) It is envisaged that the services to provided will be appropriate to meet the needs of persons with disabilities;

b) Assessment of needs and identification of appropriate services is a function of assessment officers;

c) Identification of appropriate services by assessment officer is not, as a matter of fact, divorced from the reality of available service provision;

d) The liaison officer’s function is limited to finding out and specifying in a service statement when and where the services identified as appropriate by the assessment officer can be provided, and making arrangements for such provision;

e) The Act does not confer liaison officers with the power to supplant the conclusions of the assessment officers with regard to appropriate services or to specify services in a service statement other than those which have been identified as appropriate in the assessment report;

f) A failure to provide specified services cannot be the subject of a complaint until the specified delivery date passes;

g) The services specified in the service statement should therefore be those identified in an assessment report as appropriate to meet a disabled person’s needs.

70. It is submitted that s.11(2) should be given a literal interpretation and that the services specified by the liaison officer must be meaningfully connected to and referable to the services identified as needed in the assessment. The respondents say that the only basis on which the HSE could refuse to include a service that had been so identified would be if it was not going to be provided at all.

71. In their view, it follows that considerations of resources and practicability are not grounds for declining to provide a service, but only relate to when, where and for how long it will be provided. In this case, the identified services were available and were not being permanently refused. They should, therefore, have been included in the service statement.

72. It is submitted that the development of an IFSP, even if it comes within the statutory definition of a “service”, was not a service identified as appropriate to Z’s needs and, on the HSE’s own description, was a duplicate of the assessment already carried out. There was no legal or evidential basis for its inclusion in the statement, and its interposition had the effect of denying to the applicants a clear timeframe for delivery of the services that were actually needed. In turn, that meant that they did not have access to the statutory enforcement mechanisms.

73. The respondents refer to the Long Title of the Act and say that the fact that the provision made for services must be consistent with the resources available does not suggest that the provision of services not appropriate to needs is contemplated. Services provided under the Act are intended to meet needs, and even the definition of disability is framed by reference to the services needed.

74. It is contended that in imposing the obligation to carry out an assessment of needs without regard for the “cost of, or the capacity to provide any service”, s.8 is referring to the capacity of the assessment team itself. They are to identify the services needed without regard to their own funding or capacity to provide the services in question.

75. Section 9 is referred to as demonstrating that the assessment process envisages services that are actually available, since a re-assessment may be sought on the basis that there has been a change in availability.

76. It is pointed out that liaison officers are not required to have the same level of expertise as assessment officers, or to act independently, or to have regard to applicable standards concerning service provision other than those applicable to the recommended services. The role of the liaison officer is described as being organisational – the officer is to liaise with service providers, within or outside the HSE, to establish how and when the services identified in the assessment as needed can be delivered. There is no basis for the provision of services that have not been so identified. The reference to budgetary considerations is for the purpose of considering when, rather than if, a service is to be provided.

77. The respondents say the IFSP was “an unforgivable waste of a disabled child’s time”. It was a duplicative exercise, unconnected with Z’s needs, and did not lead to a more specific service statement. It was not a service that had been recommended by the assessment.

IFSPs - General

78. The Brothers of Charity Policy Document, which was written in 2002, explained the philosophy of early intervention, for children with intellectual disability or developmental delay, in the context of family-centred practice. The history of the provision of services was briefly examined and it was observed that early intervention for children and families had changed significantly over the previous two decades. Earlier programs had traditionally focused on the development of skills for the child in isolation, with an emphasis on assessing and responding to individual characteristics and learning styles of each child. The current trend, however, was to focus increasingly on a child’s family context as the basis of their learning. This had prompted changes from child-focused models (where the child’s development was the sole focus of intervention and professionals worked directly with the child only) to parent and family-focused models. Accordingly, there was increased emphasis on the role of parental decision-making, in a partnership with the professionals.

79. Under the heading “Individual and Family Service Plans” the document stated that three assumptions could be made about the development of an IFSP when such partnerships were functional: first, that families were equal partners; second, that families chose their levels of involvement in decision making and implementation; and, third, that families were supported in ways that they considered useful. The authors noted that an individualised approach was necessary because families would vary in the extent to which they required assistance. The IFSP would, accordingly, be different for each family.

80. This section of the document concludes by stating that the family-centred model of early intervention and the functioning of an interdisciplinary team formed the basis from which the services of psychologists were delivered within the Brothers of Charity service.

81. The restructuring of the HSE services for children with disabilities, based on multi-disciplinary Children’s Disability Network Team, appears to have been a more recent development. It is not clear, to me at any rate, when the concept of the IFSP came into general use. However, it is clear that the idea of a familycentred service is well-established. The HSE has been providing national guidance for the CDNTs on the development of IFSPs for at least several years. The version furnished to this Court (inexplicably, not adduced in evidence in the High Court) was in place at the time when Z’s assessment report and service statement were being prepared, was described as having been revised in June 2021.

82. The Guidance describes the IFSP as a plan which sets out the goals for the child and how the family and team are going to work towards them.

“It must be an ongoing living plan, reviewed as priorities and goals change. All supports offered by the team will relate to the plan and the agreed goals, and this should be regularly explained to the family.”

83. I have added the emphasis to the second sentence here, because it seems to me that a central feature of this case is a failure to explain to Z’s parents the pivotal nature of the IFSP process.

84. The plan must include the child or young person’s concerns and priorities; the family’s concerns and priorities, the goals agreed, how the child, the family, the team and others will work towards those goals, how the achievement of the goals would be measured and the timeframe for achievement.

85. The Guidance states that the emphasis in the IFSP should be on how the supports offered could contribute to achieving the child’s and the family’s desired outcomes, rather than the team determining and setting out what they would provide. It has to be a document written in collaboration with the family. It is noted that it can be difficult for individual team members to reach the stage where they automatically aim at family-centred goals, as opposed to traditional approaches, and practice may be required.

86. Crucially, the Guidance emphasises that all supports by the team will be linked to one or other of the goals identified in the IFSP, and that the plan and the active goals will be referred to in all interactions with the family to ensure that they are current and still what the family wants to prioritise. The only exception to having supports linked to goals would be those supports offered before an IFSP was in place or while a child is awaiting commencement of services.

87. The Guidance document contains a lot of practical advice for team members about the development of the IFSP (for example, emphasising the need for the goals to be concrete and have specified timeframes for achievement). Of note, it also stresses the need to inform the family about the IFSP process and how it can help them to ensure that they are working in partnership and that the plan reflects their priorities. Suggestions are set out for an information leaflet.

The IFSP in this case

88. The first IFSP was carried out in late April/early May 2022. The process involved RY, the speech and language therapist (designated as the “key contact”) and a social worker. It set out five goals under the headings “toilet training” (setting a target for the use by Z of a toilet in school 75% of the time by Christmas 2022), “independence” (setting out steps to give Z a more consistent sleep routine and to dress herself more within six months), “communication” (a date was set for assessment with the speech and language therapist, who would set targeted goals), “parental stress and seeking support” (the social worker was to assist in seeking support for RY in the home and in relation to the carer’s allowance and counselling services) and “school placement” (requiring liaison with the special educational needs organiser in relation to an appropriate placement). The specific actions to be taken by the members of the team and by RY (for example, explaining to the school her techniques for getting Z to use the toilet at home, and attending a sleep workshop to learn initial strategies) were listed in relation to each goal.

Discussion

89. The issues that the Court has to determine are, as set out above, a) whether it is a requirement of the Disability Act 2005 that each health service identified in an assessment report be “specified” in a service statement; and b) whether the statutory requirements regarding the contents of service statements were breached by identifying development of an IFSP as a “specified” health service.

90. As a matter of statutory interpretation, it seems to me that the answer to the first question must be negative. The Act very clearly distinguishes between the “resource-blind” assessment and the service statement. There is no basis on which it could be concluded that every service recommended by the assessment report must be included in the service statement, with the only scope for variation being in the time-line for provision. There must, of course, be a rational connection between the content of the two documents – a service statement could certainly be the subject of a complaint if the only service specified had no relevance to the needs identified in the assessment.

91. The second question requires some further consideration of what is involved in an IFSP. The principal rationale underlying the concept is that the learning and development of children with disabilities, like that of most children, takes place to a very significant extent within the family and home context. One-to-one sessions with specialists in various therapies will necessarily occupy only a relatively short proportion of a child’s day or week. For that reason, it has come to be seen as necessary for professionals to engage with the family members, to understand their circumstances and priorities and to support them in their efforts, as a family, to care for and support the development of the child. This position is in fact apparent from the assessment by the multi-disciplinary team in this case, which deals with the importance of providing information and advice to the family in relation to Z’s development.

92. There has, therefore, been a shift in focus away from what might be seen as a model comparable to that found in medical practice, where a patient might attend individual specialists, on their own, for treatment in relation to different conditions. Such individual interventions may well be necessary or beneficial to an individual child with a disability (and so, for example, Z is receiving individual speech and language therapy), but the broader emphasis is now on the familycentred approach. In this model, the professionals learn what the needs and priorities of the family are and assist by helping to set achievable goals and by imparting relevant skills and information that may be of practical benefit.

93. The 2021 Guidance document makes it clear that the IFSP is by now the key process for the delivery of HSE services to children with disabilities. All actions taken by CDNT members, and all services provided to a child or to parents, will relate to the priorities and goals identified in the Plan. The priorities, and therefore the goals, may have to change to meet changed circumstances. This is why it is in general considered necessary to formulate the first IFSP before embarking on interventions, and why the IFSP process should not be engaged in until the CDNT is in a position to provide support in achieving the goals.

94. My view is that, firstly, the IFSP process is a health service within the meaning of s.7 – “a service (including a personal social service) provided by or on behalf of the HSE”. It is a service that helps families to focus on their priorities and shortterm goals and also determines how the professionals can assist in the achievement of those goals. In effect, its commencement marks the starting point for the delivery of the services (which include advice, information and practical assistance to the family as well as necessary individual therapies) and then continues in existence as the (evolving) basis for the development of further goals.

95. Two observations occur at this point. The first is that none of this appears to have been properly explained to RY. It is not in the least surprising that a parent who reads an assessment report that recommends occupational therapy, speech and language therapy and psychological intervention might expect a service statement that sets out anticipated dates for the commencement of sessions with each of the relevant therapists. Since no explanation was given of the central importance of the IFSP, or indeed of what it would involve, RY understandably took it as being simply, in effect, a further and unnecessary stage of the assessment and a deferral of actual services. The trial judge seems to have had a similar impression. It is most unfortunate that the HSE did not provide any explanation on affidavit. It did exhibit the Brothers of Charity document, but without saying whether the policy informed its own work. The High Court was not furnished with the IFSP Guidance document.

96. The second observation is that the family-centred, IFSP-based model is not easy to fit into the individual-centred, rights-based scheme and structures of the Act. It seems clear that the legislature intended a process through which particular services and dates would be clearly identified in the service statement, with a concomitant legal right to seek implementation through the courts if necessary. If each service statement now specifies a start date for the IFSP process only, the right appears attenuated insofar as the only complaint that would appear to be possible would be a failure to commence that process.

97. Equally, it seems clear that the purpose of s.13 was to ensure that the gap between the scale of the needs identified in assessments and the services set out in service statements could be measured and reported on, so that appropriate plans could be made. Again, if the service statements only specify IFSPs it will be difficult to know whether or not there is such a gap.

98. It would appear, therefore, that the model employed for the delivery of services by professionals working with children with disabilities has gone on developing while the Act has remained essentially unaltered. Does this have the result that a service statement such as the one in issue here, which is geared to the new model, is necessarily invalid?

99. There is, in my view, nothing objectionable about the IFSP-based model and there is much in it that makes sense. The HSE does, however, need to make sure that it complies with its obligations under the Act and recognises the legislature’s intent to give enforceable rights to individuals. Those obligations involve setting out and implementing measurable actions.

100. In order to comply with that requirement, the HSE should, firstly, provide a greater level of detail in the service statement itself. It needs to spell out what will be involved in the IFSP process. If it is a HSE policy that a person qualified in a therapy identified as a need will participate throughout the process (as has been happening in this case) that should be stated. Since it must be rationally related to the assessment of needs (and since it can be assumed that the family priorities will relate to those needs) the statement should make it clear that the process, the concrete plans made and the professional assistance that will be involved will be aimed at the priorities of the family having regard to one or more of the needs identified in the assessment report.

101. The reviews of the service statement also require a greater level of detail. In my view it is not sufficient to recount what has been done to date – it should also provide an overall assessment of the goals that were set and the success or otherwise in achieving them. The review statement also needs to identify the overall goals for the near future, and the nature of the work that will be undertaken to achieve them. IFSP goals are likely to be relatively short term, and the review needs to take account of that and say how the goals are to be measured. This may mean that reviews need to be taken relatively frequently.

102. So far as the HSE’s obligations under s.13 are concerned, it seems to me that if the only specific service identified in the first service statement is an IFSP, the fact that specific needs identified in the assessment of needs have not been included has to be recorded. This is necessary in order to assist in the measurement of aggregate needs, as envisioned in the section. If the process progresses as intended, the subsequent service statements will include reference to specific services relevant to the identified needs.

103. The original service statement in this case did not meet these criteria, and nor did the first review statement.

104. The High Court ordered the remittal of RY’s complaint to the appeals officer on two grounds, one of which has not been appealed. Formally, therefore, the matter must go back to the appeal stage. As will have been seen, however, the circumstances in which services have been provided to Z have developed since the commencement of these proceedings and the original service statement has long since been superseded. It seems likely, indeed, that there will have been further reviews since the one that was put before the court. It may be that RY no longer wishes to pursue the complaint, but, if she does, the appeals officer should consider the complaint in the light of this judgment. Further reviews of the service statement should also be conducted in accordance with the criteria set out above.

105. In the circumstances I would dismiss the appeal.