HSE -v- DykesNeutral Citation IEHC 540 High CourtJudgment was delivered by Mr Justice Michael Hanna on December 8th, 2009
Judgment
In a case involving an autistic boy, where the Disability Appeals Officer (DAO), Teresa Dykes, had decided he was entitled to an assessment of needs which had previously been refused by the HSE on the grounds that he was not within the eligible age limit, the HSE lost its appeal against the DAO’s determination.
Background
The boy was born on August 28th, 2002 and suffered from a severe form of autism. His father was a notice party in the proceedings, and acted as a lay litigant when appealing the HSE decision.
The HSE had refused to provide an assessment of need to the boy, and his father appealed this decision to the Disability Appeals Officer, who granted his appeal on June 12th, 2009, and recommended that an assessment be provided and completed within three months. The HSE appealed this decision to the High Court challenging the finding under the Disability Act 2005 (Commencement Order) 2007.
This set the commencement date for the coming into force of the relevant section of the Act as June 1st, 2007. This part of the Act referred to “persons under five years of age”.
The issue in the case was whether a person had to be under five years of age at the date of their application for an assessment, or whether it was sufficient that the person was under five on the date of the commencement of the Act, that is, June 1st, 2007. On this date the boy was four years and 10 months.
The DAO contended that the Act applied to people under five on June 1st, 2007. The HSE contended that only persons under the age of five at the time of application were eligible to apply for an assessment. The DAO stated that this interpretation was contrary to the stated purpose of the Act and would limit the entitlement to a significantly greater extent than the Act required.
She pointed out that if this interpretation was correct any child seeking an assessment who was under five on June 1st, 2007 qualified for one, but a child who had turned five when their application was made lost their eligibility through no fault of their own. This would be contrary to the intention of the Act and to our obligations under the European Convention on Human Rights.
It was pointed out that no transitional regime had been put in place to deal with this anomaly. It therefore fell to the court to interpret the Act.
Mr Justice Hanna pointed out that nowhere does the Act itself state that the relevant part only applied to those under five, and nowhere was there a statement that the right to an assessment could be lost.
The Commencement Order stated that June 1st, 2007 was the date on which this part of the Act came into operation “in relation to persons under five years of age”. It did not add “on the date of the commencement of the Act”, or “on the date of the making of an application”, either of which would have clarified the issue.
Mr Justice Hanna pointed out that the thinking of the HSE was revealed in a Guidance Note circulated to assessment officers on June 27th, 2007, which stated its intention as “to make the Act applicable to those under five years of age on an ongoing basis. . . The rationale for this interpretation is that it allows the HSE to implement the Act in respect of a particular age cohort from (sic) whom services are provided.”
It added that no legal advice was sought in relation to this interpretation, which meant an application for an assessment had to be made before the child turned five.
If the Act referred to children under five on the date of commencement, children born between June 1st, 2002 and June 1st, 2007 would be indefinitely eligible to apply, along with those born after the latter date, who have to apply before they were five.
“This conclusion was reached by the HSE . . . in order to allow the HSE to confine the services it was obliged to provide under the Act to a particular age cohort, notwithstanding the fact that nowhere in the Act is any such limitation imposed,” Mr Justice Hanna said.
Decision
On a literal interpretation of the Commencement Order it was clear that the Act was to apply to children who were under five on June 1st, 2007, given the legislative intent of the Disability Act and the fact that the legislation created rights which the supporting Statutory Instruments were designed to support and facilitate rather than stifle, Mr Justice Hanna said.
The principle of effectiveness in European law provides that time limits cannot be imposed upon the exercise of a legal right in a manner which would render the exercise of that right impossible or exceptionally difficult.
The Guidance Note issued to the assessment officers did not have the force of law, and regardless of what it contained the HSE was obliged to give effect to the Act as is, and not as modified by any guidelines, he said.
The right to an assessment of needs under the Act referred to all children under five on June 1st, 2007 and thereafter to all children under five. It was regrettable that the wording of the Commencement Order was not clearer, and that no transitional arrangements were put in place for children under five on that date. However, the HSE read into the Commencement Order a time scale that simply was not there, he said. Mr Justice Hanna said the interpretation of the DAO was the correct one, and he dismissed the HSE appeal.
The full judgment is on www.courts.ie.
Felix McEnroy SC and Barry O’Donnell BL, instructed by BCM Hanby Wallace, for the HSE; John Rogers SC and Emily Egan BL, instructed by Ivor Fitzpatrick Co, for the Disability Appeals Officer