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HSE failed in its obligations to assess potentially disabled children under the Disability Act 2005
Coleman Legal LLP
January 29, 2025
In a landmark decision, the High Court ruled against the HSE Standard Operating Procedure for Assessments of Needs (AON), stating that a comprehensive assessment, including a diagnosis, is essential for determining a child's needs.

High Court rules against HSE Standard Operating Procedure for assessments of needs

In January 2020, the HSE introduced a Standard Operating Procedure (SOP) for assessing applications for Assessments of Needs (AON) for children. This provided that assessment would take place in two stages- firstly by desktop, and secondly, a preliminary assessment consisting of one hour of observed play time and a 30-minute discussion with the parent(s) or guardian. The result of this assessment was that a child was asked to determine whether or not the child had a disability but did not diagnose the disability. The SOP determined only whether the child had a “substantial restriction”. Before the introduction of the SOP, the practice of the HSE was to carry out a full assessment of the child for diagnosis. This is due to significant resource issues involved in that process, and the HSE decided to replace this with their SOP.

Applicants challenge the HSE’s 2020 Standard Operating Procedures.

In March 2022, two applicants successfully challenged the HSE’s adopted policy in the High Court in cases brought forward by their mothers. Standards for AON’s had previously been adopted by HIQA in 2007 and required that such assessments be “comprehensive, accurate and up to date”. The applicants argued that the assessments should be carried out without restrictions on budget or capacity and that without a diagnosis, an appropriate assessment of needs could not be made. The HSE rejected this argument.

Court’s findings

Ms. Justice Siobhan Phelan found in favour of the applicants. She stated, “ In order to assess whether a disability within the meaning of (the act) is present, it is therefore necessary to determine a cause of the restriction”. The Court found that a child’s needs required full assessment to provide appropriate care. Ms. Justice Phelan also stated that the preliminary assessment that formed the SOP did not align with HIQA’s objective of “comprehensive, accurate and up to date” reports. Ultimately, the Court found that the SOP adopted by the HSE in 2020 was not in accordance with the 2005 Act. Therefore, a comprehensive assessment of a child’s needs was necessary, and this could only be done with a proper diagnosis.

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Clodagh Magennis

Clodagh Magennis

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