Disability Act 2005 – Assessment of Need Update from Court of Appeal

On 1st April 2021, the Court of Appeal delivered an important judgment in G v Health Service Executive. This judgment addressed the question as to whether an applicant is entitled to a service statement pursuant to the Disability Act 2005, when an Assessment Officer made a determination that the applicant did not have a disability. In this article, Lebeau Jonker, Partner, Comyn Kelleher Tobin, looks at the recent judgment and what it means for stakeholders.

Background

This case arose from an Application by the Applicant, ‘G’ to the Circuit Court seeking an Order directing the HSE to comply with the recommendations of a Disability Complaints Officer within a limited timeframe. During the hearing in the Circuit Court, a legal point arose which also came to the fore in similar Judicial Review applications before the High Court in recent times; namely the legal entitlement to a service statement where it was determined that the applicant does not have a disability, but certain health needs were nonetheless identified in their Assessment of Need report.

This issue had not previously been determined before the High Court and a number of similar cases were adjourned until after determination of the test cases. After careful consideration, Ms. Justice Linnane in the Circuit Court stated a case to the Court of Appeal on the following question:

“Where an assessment report prepared under the Disability Act 2005 concludes that an applicant has no disability but nonetheless identified that the applicant has health needs and requires health services, is the applicant entitled under inter alia Section 11 of the Disability Act 2005 to a service statement?”

Hearing

The case stated was heard before the Court of Appeal on 13th January 2021 and Ms. Justice Ní Raifeartaigh delivered judgment on 1st April 2021 with both Ms. Justice Costello and Ms. Justice Pilkington concurring with her.

Ms. Justice Ní Raifeartaigh held, “I am of the view that the answer to the question posed in this case stated as being the negative where an assessment report prepared under the Disability Act 2005 concludes that an applicant has no disability, that nonetheless identifies that the applicant has health needs and it requires health services, the applicant is not entitled under Section 11 of the Disability Act 2005 to a service statement”.

She further held that, “It seems to me beyond argument, despite the appellant’s submission to the contrary, that making the complaint and appeal mechanism within the Act available to all applicants who have health and/or education needs, whether or not they fall within the Act’s definition of “disability”, would inevitably incur greater expenditure.”

This provides much needed clarity on this issue and prevents the diversion of much needed resources for people with disabilities. Read the full judgment here.

If you require any clarification or advice on the Assessment of Need process or the Disability Act 2005, please contact Cliona Kenny, Solicitor, Comyn Kelleher Tobin or Lebeau Jonker, Partner, Comyn Kelleher Tobin.