M & Anor v Health Service Executive, B v Health Service Executive (Approved)

Factual and Procedural Background

These judicial review applications concern statutory interpretation of Part 2 of the Disability Act 2005 ("DA 2005"), specifically section 8(7)(iv), which relates to the assessment of need, service statements, and redress for persons with disabilities. The applicants seek recognition of an enforceable statutory right to a "review" of assessments carried out under the DA 2005 and orders compelling the Health Service Executive ("HSE") to commence and/or complete such reviews within specified timeframes.

The two cases considered are:

• Case A: Where a review has commenced but is not completed, applicants seek an order compelling the HSE to conclude the review within a reasonable time after the review date stated in the Assessment Report.
• Case B: Where a review has not commenced, applicants seek an order compelling the HSE to commence and complete a review within a reasonable period after the review date specified in the Assessment Report.

In Case A, the review was near completion at the time of hearing, with some outstanding reports pending. In Case B, the review had not progressed beyond initial steps.

The HSE contends that no enforceable right to a review exists under the DA 2005 and that the appropriate remedy for applicants is to seek a new assessment under section 9 of the DA 2005. The applications were granted leave for judicial review by the High Court, setting the scope of the legal challenge.

Legal Issues Presented

1. Does Part 2 of the Disability Act 2005, particularly section 8(7)(iv), and the 2007 Regulations provide an enforceable right to compel the HSE to complete a commenced review of an assessment within a reasonable time after the review date?
2. Does Part 2 of the Disability Act 2005, particularly section 8(7)(iv), and the 2007 Regulations provide an enforceable right to compel the HSE to commence and complete a review of an assessment within a reasonable period after the review date?
3. Should a declaration be issued if the HSE fails to comply with any such enforceable obligation?

Arguments of the Parties

Applicants' Arguments

• The applicants assert a statutory enforceable right to a review of assessments under section 8(7)(iv) of the DA 2005.
• In Case A, the HSE is obligated to complete the commenced review within a reasonable time after the review date specified in the Assessment Report.
• In Case B, the HSE is obligated to commence and complete the review within a reasonable time after the review date.
• Requests for review were made by solicitors, but the HSE failed or refused to comply.
• The updating of Assessment Reports and Service Statements is critical due to changes in the applicants' needs and services.
• The statutory complaint mechanism under section 14 of the DA 2005 does not provide jurisdiction to address failures to carry out reviews.
• The applicants seek mandamus orders compelling the HSE to perform these reviews and declarations of statutory breach.

Respondent's (HSE) Arguments

• The DA 2005 does not establish an enforceable right to a review of an assessment under section 8(7)(iv).
• The proper remedy is for the applicants to seek a new assessment under section 9 of the DA 2005, which has clear statutory timeframes.
• The statutory and regulatory framework differentiates between Assessment Reports and Service Statements, with only the latter requiring annual review.
• The HSE has not refused to carry out reviews but prefers the process of new assessments as the appropriate route.
• The complaint mechanism under section 14 does not cover failure to carry out a review.
• The applicants' pleadings lack sufficient particularisation regarding the timing and nature of the review obligations.
• The HSE points to previous inconsistent practices but denies any statutory obligation to carry out or complete reviews enforceable by judicial review.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed statutory interpretation of Part 2 of the Disability Act 2005 and the 2007 Regulations. It emphasized the primacy of the plain and ordinary meaning of statutory language, considering context and purpose but rejecting any interpretation that would rewrite or extend the statute beyond its clear terms.

The phrase "should be" in section 8(7)(iv) was interpreted as aspirational rather than mandatory, indicating an estimate or recommendation by the Assessment Officer rather than an enforceable obligation to conduct or complete a review. The statutory framework differentiates between Assessment Reports, which identify needs on an ideal basis, and Service Statements, which specify actual services and require annual review.

The court noted that the DA 2005 includes a comprehensive statutory redress mechanism for breaches of timelines related to assessments, but this mechanism does not include enforceable rights to compel reviews of assessments. The omission of such a right was viewed as deliberate by the legislature.

The HSE's preference for applicants to seek new assessments under section 9 was accepted as consistent with the statutory scheme and supported by relevant case law. Prior inconsistent administrative practices by the HSE were acknowledged but held not to affect the statutory interpretation.

Judicial intervention to compel review might arise in exceptional, egregious cases, but the present cases did not meet that threshold. The court also recognized the constitutional principle that statutory authorities' decisions must comply with constitutional justice, but this did not translate into an enforceable right to review under the DA 2005.

Holding and Implications

The court REFUSED the orders of mandamus and declaratory relief sought by the applicants in both judicial review applications.

Specifically, the court held that the statutory scheme of the Disability Act 2005, including section 8(7)(iv), and the 2007 Regulations do not provide an enforceable right to compel the HSE to conduct or complete a review of an assessment within a specified or reasonable timeframe. Instead, the appropriate statutory remedy lies in applying for a new assessment under section 9 of the DA 2005.

The direct effect of this decision is that the applicants cannot compel the HSE by judicial review to carry out or complete reviews of assessments. No new precedent was set beyond clarifying the interpretation of section 8(7)(iv) and the limits of enforceable rights under the DA 2005. The decision underscores the importance of the statutory redress mechanisms provided and the distinction between reviews and new assessments.