Family to sue over autism aid wait
■ HSE failed to deliver assessment of need within required timeframe
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.