Fam­ily to sue over autism aid wait

■ HSE failed to de­liver as­sess­ment of need within re­quired time­frame

Irish Examiner - - Front Page - Noel Baker

A High Court judge has given the fam­ily of a fouryear-old boy with autism leave to pur­sue ag­gra­vated dam­ages against the HSE over its fail­ure to de­liver an as­sess­ment of need for him within the re­quired time­frame.

The ex parte ap­pli­ca­tion for ju­di­cial re­view was made last Mon­day, seek­ing ag­gra­vated dam­ages on be­half of the boy, and claim­ing that with­out the proper re­sources, there is a“se­ri­ous risk that his de­vel­op­ment may be per­ma­nently af­fected”. It also hit out at the “fu­tile” com­plaints mech­a­nism and claims the HSE uses it as a “de­lay­ing tac­tic”.

An as­sess­ment of need (AON) al­lows chil­dren to be di­ag­nosed and then ap­ply for the re­sources they re­quire in line with their dis­abil­ity. The HSE is statu­to­rily obliged to be­gin the AON within three months of the ap­pli­ca­tion, and it should then be com­pleted within an­other three months, in­clud­ing fur­nish­ing of all rel­e­vant re­ports re­gard­ing what­ever re­sources would then be re­quired for the child.

The re­peated fail­ure of the HSE to de­liver within that time­frame has al­ready seen a string of cases brought be­fore the High Court this year, with Ms Jus­tice Mary Fa­herty or­der­ing the HSE to com­plete a num­ber of out­stand­ing AONs within six weeks in a rul­ing de­liv­ered last May.

New fig­ures show 3,662 over­due AONs at the end of Oc­to­ber, 30% of which are in Cork and Kerry.

An­other judge, Mr Jus­tice Sea mus Noon an, has granted leave to ap­ply for ju­di­cial re­view in pro­ceed­ings where the as­sess­ment was com­pleted eight months af­ter the statu­tory time limit, with the child’s fam­ily seek­ing dam­ages aris­ing out of the de­lay in com­plet­ing the as­sess­ment on time and the lack of ser­vices pro­vided to him.

The ap­pli­ca­tion was made by bar­ris­ter Bren­dan Hen­nessy. Mr Jus­tice Noo­nan asked that the HSE be in court to re­spond on Tues­day.

The ju­di­cial re­view ap­pli­ca­tion was made on be­half of a four-year-old boy whose mother is su­ing on his be­half. She sub­mit­ted an ap­pli­ca­tion for an AON in au­tumn 2016, when her child was two.

Ac­cord­ing to the sub­mis­sion lodged with the High Court, two months later, the HSE “in­cor­rectly deemed the ap­pli­cant not to have a dis­abil­ity af­ter a ‘desk­top re­view’” and closed the ap­pli­ca­tion.

The child’s mother suc­ceeded in hav­ing the ap­pli­ca­tion re­in­stated and the AON re­port was com­pleted 14 months af­ter it was re­ceived, in Novem­ber 2017, and he was di­ag­nosed with an autism spec­trum dis­or­der.

Last Jan­uary, the HSE pro­vided a ser­vice state­ment which the boy’s fam­ily claims “failed to com­ply prop­erly or at all with the re­quire­ments of the reg­u­la­tions”.

When the boy’s mother con­tacted the early in­ter­ven­tion team last Fe­bru­ary to es­tab­lish when they could take up their ser­vices, she was in­formed it would take around six months.

Nine months later, they were in­formed it would be a fur­ther eight months.

“This de­lay in com­plet­ing the as­sess­ment in ac­cor­dance with the statu­tory time lim­its in­evitably led to a de­lay to in­ter­ven­tion,” the ap­pli­ca­tion states. “The ap­pli­cant has lost valu­able and ir­re­place­able time dur­ing which his deficits could have been sooner ad­dressed, and that this is time which can­not be made up at this stage, and that per­ma­nent loss has re­sulted.”

The ap­pli­ca­tion claimed the statu­tory com­plaint and en­force­ment pro­ce­dures were “fu­tile and given the time­frame for en­force­ment nul­lify any ben­e­fit to the ap­pli­cant”, and that “given the ex­tra­or­di­nary delays” in the com­plaints process, it was “not an ap­pro­pri­ate rem­edy ”.

It also claimed that the H SE uses the com­plaints mech­a­nism “not to con­test, deal with, or dis­pute ac­tual com­plaints, but rather as a de­lay­ing tac­tic”.

“The ap­pli­cant seeks ag­gra­vated dam­ages as the re­spon­dent is con­sciously breach­ing the ap­pli­cant’s statu­tory rights,” it said.

3,662 ap­pli­ca­tions for ‘as­sess­ment of need’ for chil­dren with dis­abil­i­ties were over­due at the end of last Oc­to­ber, 30% of them in Cork and Kerry, says the HSE.

The na­tional av­er­age du­ra­tion of the as­sess­ment, per re­port com­pleted, is now peak­ing at 18-and-a-half months. A decade ago, it took an av­er­age of 8.75 months.

An as­sess­ment of need (AON) al­lows chil­dren to be di­ag­nosed and then ap­ply for the re­sources they re­quire. The HSE is obliged to be­gin the AON within three months of the ap­pli­ca­tion, which should be com­pleted within an­other three months, in­clud­ing the fur­nish­ing of all re­ports on the re­sources re­quired for the child.

But the sys­tem has be­come the fo­cus of a num­ber of High Court cases. An at­tempt by the HSE to over­haul the sys­tem and in­tro­duce a new stan­dard op­er­at­ing pro­ce­dure also ran into dif­fi­culty ear­lier this year. It was due to be im­ple­mented at the end of April, but has since been de­ferred, fol­low­ing con­cerns raised by trade unions and pro­fes­sional bod­ies.

In a re­sponse to a re­cent par­lia­men­tary ques­tion, Dr Cathal Mor­gan, head of op­er­a­tions, Dis­abil­ity Ser­vices in Com­mu­nity Op­er­a­tions in the HSE, ac­knowl­edged that the num­bers of as­sess­ments over­due for com­ple­tion re­mained high, al­though he said there had been some im­prove­ment. As of the end of last Oc­to­ber, 3,662 ap­pli­ca­tions for AON were over­due.

Of those, 1,115 were in Com­mu­nity Health­care Or­gan­i­sa­tion (CHO) 4, cover­ing Kerry, north Cork, North Lee, South Lee, and west Cork. That is al­most dou­ble the next high­est fig­ure, of 589, in CHO 9, which cov­ers north Dublin.

Dr Mor­gan said the in­for­ma­tion is based on data ex­tracted from the as­sess­ment of­fi­cers’ sys­tem data­base and shows that the num­bers that are over­due have con­tin­ued to drop, from a high of 4,104 at the begin­ning of the year.

There were also 3,216 as­sess­ment re­ports and 1,750 ser­vice state­ments com­pleted up to end of Septem­ber 2018. Last year, 5,839 new, com­pleted ap­pli­ca­tions were re­ceived, 3,614 as­sess­ment re­ports were com­pleted, and 2,455 ser­vice state­ments com­pleted.

In the re­sponse, fur­nished to Labour TD Tommy Broughan, Dr Mor­gan said: “Since the com­mence­ment of Part 2 of the Dis­abil­ity Act, in June 2007, (The Act), the HSE has en­deav­oured to meet its leg­isla­tive re­quire­ments, as set out in the act. How­ever, as a con­se­quence of a High Court rul­ing of De­cem­ber 2009, the ef­fect of which was to open el­i­gi­bil­ity to all chil­dren born af­ter June 1, 2002, the num­ber of chil­dren aged five and over, and, in ad­di­tion, of school-go­ing age, has risen steadily as a per­cent­age of all ap­pli­ca­tions re­ceived. At the end of 2011, the fig­ure stood at 26%, while, at end of 2017, this fig­ure was 51%. This is a re­flec­tion that the AON process is an ac­cu­mu­la­tive process, in terms of num­bers of chil­dren seek­ing ac­cess. It should be noted that the clin­i­cal teams who com­plete the as­sess­ments are also the teams who de­liver in­ter­ven­tion.”

Dr Mor­gan also refers to more re­cent ac­tiv­ity in the High Court, re­fer­ring to the 37 ap­pli­ca­tions for ju­di­cial re­view re­lat­ing to delays for as­sess­ment of need, al­though he said “only one of these cases re­lates to the fact that the AON did not com­mence on time”.

In May, the HSE was or­dered by Ms Jus­tice Mary Fa­herty to com­plete a num­ber of out­stand­ing AONs within six weeks.

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