Girl (7) with Down Syndrome can challenge HSE over lack of health needs assessment

High Court Reporters

A seven-year-old girl with Down Syndrome has been given High Court permission to challenge a HSE decision not to carry out an assessment of the child’s full needs, allegedly “under any circumstances”, the court was told.

At the High Court today, Derek Shortall SC, for the girl’s mother, who is suing the health body on behalf of her daughter, successfully applied for permission to seek a challenge to compel the HSE to complete a full assessment of needs and a declaration that they failed or refused to comply with their statutory obligations to the applicant.

Mr Shortall submitted to Ms Justice Marguerite Bolger that the HSE ‘s alleged position was that “under no circumstances will we carry out an assessment”.

It is submitted that the child, who cannot be identified, has a number of associated health, developmental, psychological and intellectual issues, for which she requires therapeutic and health care services.

The child has been in receipt of assistance, including physiotherapy and occupational therapy, from the Children's Disability Network Team (CDNT) since 2018.

Although the child has been assessed by the CDNT and is in receipt of some services, she has not had a complete assessment, which would be provided by an 'assessment of need', which then invokes a ‘service statement’ that addresses all health services required, it is claimed.

“The respondent [the HSE] has determined that because the applicant is already in receipt of services she is not entitled to an assessment of need and a service statement. It is this refusal that is impugned,” it is claimed.

It is claimed that an assessment was sought for the girl in October 2024 and that this should have been initiated within three months but the HSE “refused” to do so.

“The complaints process is normally utilised where there is an unlawful delay in the appeals process, not where the HSE has refused to carry out the assessment,” submitted Mr Shortall in his application.

“The facts of the proceedings, where the HSE is refusing to comply with its statutory obligations, constitutes a remarkable situation and warrants correction,” he claimed.

“The case raises a very important legal issue which should be determined by a court and goes beyond the jurisdiction and reach of the complaints process. If the applicants are correct, the decision under challenge also constitutes an error of law and a breach of fair procedures,” it is submitted.

Ms Justice Bolger granted the application to pursue the judicial review and adjourned the matter to May.