Court ruling highlights ‘unacceptable’ waiting lists for children, disability campaigners say

Disability campaigners say a High Court ruling highlights the need to end “unacceptable” waiting lists which are resulting in children waiting years for vital therapies.

The case centres on a child whose mother applied for an assessment of needs in June 2018 and was given a date of March 2023 – almost five years later – for the provision of support such as occupational therapy, physiotherapy and speech and language therapy.

Under the Disability Act, a child is entitled to have an assessment of needs completed within six months, followed by a service statement which lists services the Health Service Executive (HSE) proposes to provide to meet a child’s needs.

The High Court ruled earlier this month that the Office of the Disability Appeals Officer – an independent post appointed by the Minister for Health – has jurisdiction to consider complaints against the HSE over delays in providing the child with access to these services.

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In a statement, the HSE, which is a notice party to the case, said it was examining the judgment and the implications were being “carefully considered”.

Legal sources say ruling offers a pathway to potentially unblock access to key services for families.

Derval McDonagh of Inclusion Ireland, the national association for people with intellectual disabilities, said families should not have to resort to such appeals in the first place.

“Children and families should not have to go through the courts to secure vital therapies,” she said. “What children need right now is a comprehensive and creative action plan to address issues with unacceptable waiting lists.”

Latest figures show there are thousands of vulnerable children waiting years to access such services.

In the High Court case, an assessment report for the child was issued by the HSE in January 2020 which stated that the child required occupational therapy, psychology, physiotherapy and speech and language therapy “as soon as possible”.

The HSE later issued a service statement in August 2020 which identified a date of March 2023 for the provision of support to the child, more than three years after the initial assessment report.

The mother appealed to the HSE’s disability complaints officer in September 2020 over the late starting date for services, given that the assessment report recommended services “as soon as possible”.

The HSE complaints officer did not uphold the complaint in August 2021 and found that the provision of services would result in a “cost over-run”.

The mother subsequently appealed the finding to the disability appeals officer.

The disability appeals officer, represented in court by Mark Harty SC, disputed the categorisation of a date for the delivery of a service as coming within the complaint officer’s jurisdiction.

The child’s mother, represented in court by Derek Shortall SC and instructed by Gareth Noble of KOD Lyons, argued that the appeals officer did have jurisdiction to determine the complaints in relation to the delay in providing services.

In a published judgment, Ms Justice Marguerite Bolger found that the appeals officer fell into an “error of law” in finding that he did not have jurisdiction over the date identified in the service statement for the provision of services.

She said the child’s case would be readmitted to an appeals officer for a fresh investigation and determination of the appeal against the decision of the complaints officer.

The judge added that she made “no assessment of the HSE decision to identify a waiting time or the length of that time in the service statement”. This, she said, would be a matter for the appeals officer.