M.B. v Health Service Executive (Approved)

             This is an appeal from the judgment and order of the High Court (Phelan J.) that concerns the interpretation of certain sections of the Disability Act 2005 (the Act of 2005) and the regulations made thereunder, the Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007 (S.I. No. 263/2007) (the �Regulations�). The Act of 2005 and the Regulations provide a statutory framework for the purposes of providing various services for persons who have a �disability� as defined in the said Act.

             In general terms, where a person is found to have a disability, it is clearly necessary that the needs of that person be identified, so provision is made for the production of a document referred to as an �assessment report� . Unfortunately, the respondent, given its resources, does not have a service available for every need that is identified in the �assessment report� . The services that can actually be provided are set out in a �service statement� , as defined in the Act of 2005.

             Over time, disabilities may develop and change so the Act of 2005 and the Regulations make provision for a review and/or an application for a further �assessment report� . Also, provision is made for the �service statement� to be reviewed on a regular basis. The central issue in these proceedings is whether the Act of 2005 and the Regulations provide for an ongoing review, that is more than one review, of an �assessment report� .

             The appellants were unsuccessful in the High Court but sought their costs, or a contribution to same. The respondent did not seek its costs. In the circumstances, the trial judge made no order for costs. The issue of costs is also part of this appeal.

             The �assessment report� was reviewed, and a reviewed report issued on 4 September 2020 followed by a reviewed �service statement� on 28 October 2020. On 24 September 2021, the appellants solicitors wrote to the respondent seeking a review of the �assessment report� . This would have been a second review. It was accepted that AB�s circumstances had changed in that what was required was �a particular focus on the issue of an assessment of Dysgraphia and Dyspraxia.� as was set out in the said letter.