Under the Disability Act 2005, children must receive an initial assessment of needs within three months of receipt of an application and a complete assessment within a further three months.
However, the number of children waiting longer than the recommended three-month guideline rose by 23% between October and December 2016, figures show.
There were 3,960 children overdue for assessment at the end of 2016, with 1,732 in the Cork/Kerry region.
In one of the three cases brought before Mr Justice Seamus Noonan yesterday, a family said it had first made an application for an assessment of need to the HSE in January last year.
They claimed it has still not been completed, despite an obligation on the HSE to commence work on diagnosing a child under an assessment of need within three months of the application being received, and a further obligation to have that assessment completed within three months of starting it.
According to papers lodged involving the family from Cork, the assessment of need should have been commenced as soon as possible after January 24, 2016 (date of receipt) and in any event no later than April 24, 2016, and should have been completed by July 24, 2016, at the very latest — a delay of more than nine months.
“Each week of delay means that valuable early intervention opportunities are lost forever,” the family said.
An assessment of need can involve a multi-disciplinary team, including psychologists, speech and language therapists and occupational therapists, who arrive at a diagnosis and a statement of services that the child will then require.
However, disability rights groups have claimed the current system is not fit for purpose and that families are made to wait to find out what services their child might need.
Some families get a private assessment, but this is not always sufficient to secure services, which are provided subject to resources.
However, those in the legal action, represented by solicitor Gareth Noble of KOD Lyons, and in court by counsel Derek Shortall, argued that the HSE does have a statutory obligation to deliver an assessment of need within the agreed timeframe.
The appeals process has been criticised by disability support groups.
Papers associated with the action said: “An applicant engaging with the complaints process must, as a first step, await the determination of a disability complaints officer, which may take up to five months and there is currently a waiting list and delays due to the large number of complaints.
"A disability complaints officer’s report will normally stipulate a further three-month period in which the assessment of need should be completed.”
Mr Justice Noonan granted leave on an ex-parte basis for the applicants to bring judicial review proceedings regarding the HSE’s alleged failure to comply with the statute. The matter is due before the High Court again on May 23.
In March, Disabilities Minister Finian McGrath said the number of children awaiting disability assessments was “unacceptable”.
“I am making reducing these waiting lists my priority in 2017,” he said.
At the time, the HSE said it had “significant challenges in respect of meeting the statutory time-frames which apply to the assessment of need process”, but the chief executive of autism charity Shine, Kieran Kennedy, said the situation has been present for years.
“We are troubled and concerned by the ongoing situation that has been present for years and is only getting worse,” said Mr Kennedy.
He said even when a child is assessed, in many cases the resources are not available to provide the proper services and supports.