In so ruling, the Court rejected a submission that the HSE could carry out such assessments of need on a regional basis within each of the nine Community Health Organisation (CHO) regions that were established by the HSE.

It was the appellant’s case that he lived within a CHO which had a much longer waiting period for an assessment than other areas. The Court of Appeal determined that Regulation 5 of the Disability (Assessment of Needs, Service Statements and Redress) Regulations, 2007 required assessments to be carried out regardless of the functional area of the applicant, in order to ensure fairness and equality in the system.

Background

The appellant was a 10 year old boy who lived in Cork. As such, he lived in the region which had been designated CHO4 by the HSE. He made an application for an assessment of his needs in 2016, but he was left waiting for several years owing to HSE waiting times. It transpired that the waiting times in CHO4 were considerably longer than in the other areas.

Under the Disability Act 2005, an assessment by the HSE was to be carried out within three months of an application. Further, under the 2007 Regulations, an assessment was to take place within six months. However, the appellant was not assessed for years and he subsequently issued juridical review proceedings seeking to compel the assessment. By consent, the HSE agreed in December 2018 to conduct the assessment within eight weeks. As such, it took 33 months for the appellant to be assessed.

The matter continued as a test case because the appellant also sought declarations regarding the legality of the HSE’s approach to making assessments of need . In particular, it was contended that the HSE was required under the 2007 Regulations to assess children on a chronological, nationwide basis rather than in a chronological, regional basis.

The appellant relied on Regulation 5, which mandated the HSE to “process applications for assessment in order of the date on which they are received by the Executive.” In response, the HSE claimed that it was entitled to assess children in order within their respective CHO and that there were important practical reasons for this. It was said that it was not viable for doctors to travel around the country to conduct complex multidisciplinary assessments of children and that it was more efficient for children to be assessed within the CHO where they lived.

In the High Court, the trial judge determined that the assessments had to be carried out in strict chronological order. The court said that this provision created an equality in the system and prevented individuals from “jumping the queue.” It was also noted that it saved the HSE from being in the difficult position of assessing which children to prioritise for assessment based on potential need.

However, the trial judge went on to hold that these aims were achieved by the CHO system that was in place and that it was not for the court to micromanage how the HSE chooses to carry out its specialist functions. The appellant appealed the decision to the Court of Appeal.

Court of Appeal

Delivering judgment in the case, Ms Justice Aileen Donnelly began by considering the HSE’s submission that it was only bound under Regulation 5 to conduct the administrative processing of applications in chronological order rather than carry out the substantive assessments.

It was held that the ordinary meaning of “processing an application” required the HSE to deal with applications in a substantive manner, particularly where these words were used in the context of setting out very specific instructions as to how the system operated. It was “simply inconceivable” that the Minister would make strict time limits for the mere administrative processing of applications and leave all substantive issues to the HSE, the court said.

The court then considered whether it was permissible for the HSE to divide the system into functional areas for the purposes of assessing children. The court noted that while there was a legislative basis for saying that the HSE was permitted to manage and deliver its health and personal social services on a regional basis, the Health Act did not expressly say that this was mandatory.

In interpreting Regulation 5, the court said that HSE was given a direct command to carry out the process of assessments in a chronological fashion regardless of the functional area. Again, the court referred to the plain and ordinary meaning of the Regulations and stated that the HSE could not re-interpret a statutory mandate to process each application chronologically.

The court also rejected the submission that it was unviable for the HSE to operate a nationwide system of assessment. The court stated that the issue of statutory interpretation did not depend on how a statute might operate in practice. Given that travel was “not an insurmountable obstacle,” the court held that it had not been proven that an absurd result would arise if a nationwide system of assessment was enforced.

The court held that the present system amounted to a geographical lottery, where one child may be assessed much more quickly than another due to where they lived. As such, the absurdity lay in the present system because it undercut the core purpose of the legislative regime, which was to ensure equality of assessment for all who needed it.

However, the court went on to say that the HSE still retained a discretion as to how best to utilise its resources. The court gave the example of a psychologist with expertise in diagnosing ASD who has travelled a significant distance to examine one child in her home, could then carry out an assessment “somewhat out of turn” on a second child in that locality in order to save resources.

Conclusion

In light of the court’s findings, it was held that Regulation 5 required the HSE to carry out assessments of need on a chronological, nationwide basis. The court granted a declaration that the HSE had acted ultra vires in implementing the CHO system.