A High Court judge has given the family of a four-year-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 Seamus Noonan, 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 HSE 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.