High Court — Judicial Review — Judgment of Judge Phelan (27 March 2026)

Factual and Procedural Background

Two related judicial review proceedings were heard together. Each involves a minor Plaintiff (represented by a parent/next friend) challenging the nomination made by Company A under s.8(3) of the Disability Act 2005 of a school-based person to assist The Hospital's Assessment Officer in an Assessment of Need (AON). The Plaintiffs allege Company A operates a fixed policy (expressed in Circular 0025/2024, since replaced) of nominating school principals/teachers as the default nominees, thereby fettering Company A's statutory discretion, mis-stating the law and producing flawed AON outcomes. Relief sought included quashing Company A's nominations and the Updated AON reports and compelling nomination of an educational psychologist.

The Hospital informed the Court that Plaintiffs remain entitled as of right to request a new AON and therefore took a limited, non-active role. Leave to bring judicial review was granted in each case at the ex parte stage. The Court noted that an extension of time was required to challenge Company A's nominations because proceedings were not commenced within three months of nomination in either case.

Brief case-specific matters (as pleaded and evidenced): in Case 1 a multidisciplinary team diagnosed the child with ASD and GDD; Company A nominated the school principal and a teacher completed the Company A Report of Education Needs; The Hospital issued an Updated AON referencing that Report. In Case 2 a similar sequence occurred (referral, Company A nomination of the school principal, school-completed Report, Updated AON). In both cases Plaintiffs had previously requested nomination of an educational psychologist; proceedings were ultimately issued more than three months after Company A's nominations.

Legal Issues Presented

1. Whether Company A unlawfully fettered its s.8(3) discretion by operating a fixed policy of nominating school principals/teachers (as reflected in Circular 0025/2024).
2. Whether Circular 0025/2024 (and Company A's conduct following it) misstates the law and is ultra vires the 2005 Act.
3. Whether the Company A nomination invalidated or rendered unlawful the Company A Report of Education Needs and the Updated AON reports prepared by The Hospital.
4. Whether the Plaintiffs are out of time to challenge Company A's nominations and, if so, whether the Court should exercise discretion to extend time.
5. Whether The Hospital's Assessment Officers failed to conduct an independent, "gold standard" assessment under s.8(7) of the 2005 Act by unduly relying on Company A's nominee reports.

Arguments of the Parties

Plaintiffs' Arguments

• Company A applies a fixed, inflexible policy (per Circular 0025/2024) nominating school principals/teachers as assessors without individualised consideration, thereby fettering its statutory discretion under s.8(3).
• The practice and Circular wrongly treat teachers as automatically having "appropriate expertise" in every case; where a child has complex needs an educational psychologist is required.
• Consequentially, the Company A nomination rendered the Company A Report and The Hospital's Updated AON unlawful, irrational and discriminatory; orders are sought to quash nominations/reports and to compel appropriate nominations.

Respondents' Arguments (Company A / Company B / The Hospital)

• Company A (and Company B via Circular guidance) are entitled to adopt a process whereby, in-school children, properly qualified teachers/principals may be nominated; prior case-law supports teachers as appropriate nominees in many cases.
• Circular 0025/2024 provided guidance to schools (not a binding directive to Company A) and did not eliminate case-by-case consideration; Company A sometimes nominates non-teachers.
• The Hospital contended the Updated AONs were informed by multidisciplinary clinical reports and the Assessment Officers made independent findings; Plaintiffs retained statutory rights to request a new AON and to pursue statutory complaints instead of immediate litigation.
• Respondents relied on time-bar and delay: Company A's nomination and the Updated AONs were communicated more than three months before proceedings; no good and sufficient reason was shown to extend time.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the interlocking statutory framework (Education Acts 1998 & 2004 and the Disability Act 2005) and relevant authority. Key points of legal analysis were:

• Statutory roles: The Hospital's Assessment Officer has the non-delegable duty to conduct a resource-blind, "gold standard" AON and to make independent findings under s.8(7) of the 2005 Act; Company A's role under s.8(3) is limited to nominating a person with "appropriate expertise" to assist (not to carry out the assessment).
• "Appropriate expertise" is child-specific; a qualified teacher may, in many cases, satisfy that requirement (supported by uncommenced provisions of the 2004 Act and case law), but Company A must exercise case-by-case discretion and be able to explain nominations where specialist input would otherwise be expected.
• Circular 0025/2024 was guidance to schools and not addressed to Company A; while potentially misleading if read as imposing mandatory nomination rules, guidance alone cannot lawfully eliminate Company A's statutory discretion. Circular 0025/2024 has been replaced by Circular 0069/2025 which expressly recognises legitimate reasons for a school/teacher to decline or limit assistance.
• Procedure and reliance: Where the nominee provides assistance, the Assessment Officer must still carry out their independent statutory assessment and cannot simply adopt the nominee's report as the s.8 assessment.
• Delay/time-bar: Company A's nominations were communicated more than three months before proceedings; the Plaintiffs (legally represented) did not show good and sufficient reason for delay or circumstances outside their control to justify extension of time under Order 84, Rule 21 RSC. The Court therefore refused to extend time to challenge the nominations.
• Alternative remedies and pre-litigation steps: Plaintiffs failed to pursue statutory avenues (requests for a new AON under s.9, statutory complaints under ss.14–15) and did not issue a pre-action demand (mandamus letter) to The Hospital; the Court treated judicial review as an inappropriate first remedy for matters, in so far as they concerned The Hospital's assessment functions.
• Consequential relief against The Hospital was not pursued at hearing (parties agreed Plaintiffs could obtain a new AON without court order); in any event the Court would have declined discretionary relief against The Hospital for failure to exhaust statutory remedies and pre-litigation steps.

Holding and Implications

CORE RULING: RELIEF REFUSED — the Court refused the relief sought in both proceedings.

Implications:

• The challenges to Company A's nominations are out of time; no extension of time was granted.
• The Hospital retains the statutory duty to conduct a "gold standard" AON and Plaintiffs remain entitled to request a new AON under the 2005 Act; the Court emphasised statutory complaint and review mechanisms as the appropriate routes for contesting the substance of an AON.
• The decision leaves intact the principle that teachers may, in appropriate cases, constitute persons with "appropriate expertise" for s.8(3), but Company A must retain and exercise case-by-case discretion when nominating and be able to justify nominations where specialist expertise is warranted. Circular 0025/2024 has been replaced (Circular 0069/2025) and the Court noted that replacement addresses some prior criticisms.
• No consequential declaratory relief against The Hospital was awarded; the Court indicated no new broad precedent was being established beyond applying existing authority and statutory interpretation to the facts of these cases.

The Court ordered that the parties be listed for mention regarding consequential matters if necessary.