HSE ASSESSMENT OF NEEDS AND WAITING TIMES: COMPLAINTS PROCEDURE AND LEGAL REMEDIES.
It is open to a person to submit a complaint in respect of the contents of their assessment of needs or service statement to include the length of time that a person must wait to access much needed services outlined in a Service Statement and an Assessment of Needs Report. The recent Supreme Court decision in JN and TM (A Minor Suing By His Mother and Next Friend JN) and John Harraghy and Health Service Executive [2023] IESC 9 (27 April 2023) confirmed that the date on which services as outlined in a service statement is a relevant consideration when determining a complaint. By way of background, following an application for an assessment of needs in June 2018, an assessment of needs report issued in 2020 which held that TM required occupational therapy, psychology, physiotherapy and speech and language therapy. The assessment of needs report also stated that these services were needed as soon as possible, or as was stated in the assessment report, “ASAP” for the child. The mother of the applicant sought to access services as soon as possible for TM and submitted a complaint to the HSE outlining that TM needed the services as soon as possible and argued that the HSE was failing to provide the services specified in the Assessment of Needs and Service Statement.
The complaint officers declined to consider the waiting time for services stating “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”. However, the Supreme Court disagreed and held that a complaint’s officer could consider whether services could be provided sooner to an applicant. Furthermore, it was outlined that the complaints officer can also issue a binding and legally enforceable recommendation in relation to the earlier provision of services outlined in an Assessment of Needs and Service Statement. In summary, the Supreme Court held that “the Appeals Officer in this case was wrong to conclude that he had no jurisdiction to consider the dates for provision of any services provided for in the service statement”.
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FACTUAL BACKGROUND
JN the mother of TM applied for an assessment of the child’s needs in June 2018. An assessment of needs report issued in January 2020 which outlined that the following services:
(a) Occupational Therapy
(b) Psychology
(c) Physiotherapy
(d) Speech and Language
It was determined in TM’s assessment of need that these services were required as soon as possible, or as was stated in the assessment report “ASAP”. The Service Statement which issued gave a date of March 2023 for the provision of the services outlined in the Assessment of Need. JN the mother of TM lodged a complaint to the Disability Complaints Officer in relation to the Service Statement and “particularly the start date of March 2023”.
The complaint’s officer dismissed the complaints submitted by the child’s mother and a further appeal of this dismissal was brought before an Appeals Officer. The Appeals officer refused the appeal stating that neither the complaint’s officer nor the appeals officer could change or alter any aspect of the services outlined in the service statement which included the date for the provision of any such services. The Complaint’s officer’s position was that the ability to vary a service statement including a date at which a service could be provided is a matter that could only be addressed by a Liaison Officer. The complaints officer stated that their only function was to address the complaint before it and make recommendations. The complaint’s officer refused to address or engage with the question of the dates within which services could be provided and amongst other factors relied upon the availability of resources as a significant factor in their determination.
The Supreme Court held that the Appeals Officer was “wrong to conclude that he had no jurisdiction to consider the dates for provision of any services provided for in the service statement”. The Court outlined that an Appeals Officer could consider whether services could be provided earlier and furthermore that it could consider whether services could be provided in a different functional area of the HSE to the one in which the applicant for services normally resides.
ACCESS TO SERVICES, LEGAL RIGHTS AND REMEDIES.
The decision in JN and TM (A Minor Suing By His Mother and Next Friend JN) and John Harraghy and Health Service Executive [2023] IESC 9 (27 April 2023) establishes that upon receipt of a complaint in respect of services outlined in a Service Statement and Assessment of Needs Report, that the complaint’s officer must investigate the complaint to establish whether services can be provided to the applicant earlier than the date outlined in the Service Statement. The complaint’s officer will issue a recommendation which are “binding on the service provider, usually the HSE and are enforceable in the Circuit Court”. Should you wish to read the above decision in JN and TM (A Minor Suing By His Mother and Next Friend JN) and John Harraghy and Health Service Executive, you may do so by visiting www.courts.ie. Should you wish to discuss your service statement and the provision of services which are outlined therein, please get in touch by contacting us at (01) 833 8147 or alternatively you can email us at [email protected].
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