The Supreme Court last week held that a Complaints Officer and an Appeals Officer have wide powers under the Disability Act 2005 to investigate complaints regarding a disability service statement and that the Appeals Officer in this case did in fact have jurisdiction to make a determination on the dates for the provision of disability services contained in a service statement.
Background
The Plaintiff, TM is a child who satisfies the disability criteria under the Disability Act 2005 (“the 2005 Act”). His mother, JN, applied for an assessment of the child’s needs in June 2018. On 27th January 2020, an assessment report was issued stating that TM requires occupational therapy, psychology, physiotherapy and speech and language therapy. The assessment report underlined that these services were needed as soon as possible, or as was stated in the assessment report, “ASAP” for the child. A service statement was issued on 18th August, 2020, which gave the date of March 2023 for the provision of the above services to TM.
JN then submitted a complaint to the Disability Complaints Officer in September 2020 taking issue with the content of the service statement and particularly the start date of March 2023 given to the family for provision of the services. She pointed to the fact the assessment report confirmed that TM needed the services as soon as possible and asserted that the HSE was failing to provide the service specified.
The Complaints Officer dismissed these complaints in a report issued on 3rd August 2021. The report stated that the service statement was correct, accurate and was compliant with the 2005 Act and that the start date given for the services to be commenced was within the realms of the Act.
JN appealed this decision to John Harraghy (“the Appeals Officer”). In detailed submissions she criticised the Complaints Officer’s findings that the provision of services to TM would result in cost over-run and that there were not adequate resources to provide the required services at a closer date. The Appeals Officer dismissed the appeal by determination on 25th November 2021, against which a statutory appeal was taken to the High Court by JN. The Appeals Officer stated in his determination that neither the Complaints Officer nor the Appeals Officer have the jurisdiction to alter any aspect of the services to be provided nor the time at which they are to commence and this part of his determination forms the basis of the present appeal.
A statutory appeal was brought against this determination. The High Court determined that the Complaints Officer did have jurisdiction under the 2005 Act to amend the service statement. (See here a link to the High Court Judgment: J.N. v. Harraghy [2022] IEHC 407)
Supreme Court
In an appeal to the Supreme Court, the Appeals Officer and the HSE submitted that the High Court decision was incorrect. It was said that proper interpretation of the Officer’s powers under the 2005 Act was that any alteration or amendment of a service statement could only be made by the Liaison Officer (the first instance decision-maker).
The State parties submitted that a Complaints Officer only had the power to make recommendations for the amendment of a service statement and therefore had no power to directly amend a statement. Further, it was submitted that an Appeals Officer only had the power to “affirm, vary or set aside” recommendations of the Complaints Officer.
It was also submitted that the trial judge had placed excessive weight on the social and remedial nature of the 2005 Act which led to an erroneous interpretation of the Officer’s powers.
The Court stated that the real issue in the proceedings related to the powers of the Officers to make recommendations/determinations for the delivery of services in a statement.
The Court noted that this was not a case which argued that the HSE had failed to allocate sufficient funding to the services or that there be a reallocation of funds to ensure that the child’s needs were met. In this regard, the Court commented that the HSE did not have unlimited resources.
The Court accepted that the moneys available for the provision of services was a factor to be considered when preparing a service statement pursuant to the Act. Further, on the issue of the practicability of providing services, it was a matter for the relevant body to identify the appropriate funding for services.
Ms Justice Dunne outlined how a Liaison Officer’s assessment was not a decision on the entitlement of an applicant to services. Instead, they were ascertaining whether services were available in a particular area to cater for the applicant. The Liaison Officer could not create extra places for an applicant and it may not always be possible to give a firm timeline to an applicant. Further, if there were no available places in a particular area, a Liaison Officer was limited to stating this fact.
The Court held that the Appeals Officer had taken an unduly narrow view of the jurisdiction of a Complaints Officer to make recommendations for the alteration of dates in a service statement. A Complaints Officer had the power to make recommendations in respect of the dates for the provision of services and these recommendations were to be acted on by the Liaison Officer. Accordingly, the Supreme Court dismissed the appeal.
See here a link to the judgment of Ms Justice Dunne in JN and Anor. V. Harraghy [2023] IESC 9