ELG & Anor v Health Service Executive (Approved)

Where a judge elects to make a consultative case stated but resigns, retires or dies before a higher court is in a position to deliver a judgment in respect of the question or questions posed by the case stated, is the jurisdiction of that (higher) Court thereby affected? Specifically, is that higher Court any longer empowered to answer the consultative case stated? This is the slightly unusual problem which has been presented as a preliminary issue in this appeal from the decision of the Court of Appeal.

All of this, however, is to anticipate somewhat because it is first necessary to set out the background to this appeal and to explain in a little more detail the novel problem which now arises.

The applicant, ELG, is a little girl who is now aged six. Her mother, SG, was concerned that she may have a disability. To that end her mother made an application to the respondent Health Service Executive in October 2017 pursuant to the provisions of the Disability Act 2005 (�the 2005 Act�) to have her assessed. The HSE completed a summary report in March 2018 in which it was stated that it was believed that ELG did not have a disability, but she was nonetheless referred for a further psychological and occupational therapy assessment.

It is unnecessary for present purposes to chart the further issues which arose between SG and the HSE regarding the other range of services that should be made available to this little girl. It is sufficient to record that a complaints officer recommended - admittedly on a conditional and provisional basis - that ELG be supplied with a service statement from the HSE. When the HSE declined to issue a service statement, the applicant (through her mother) invoked the redress mechanism contained in the 2005 Act with a view to compelling the HSE to do so.

One might pause at this point to observe that the resolution of this question is of considerable importance, not only to the applicant and her family, but also to many other children and their parents who are in a similar situation. As it happens there is no other issue as between the parties and the Court has been informed that the HSE does not propose to seek costs in this case. In view of the importance of this matter, it would be highly desirable that this Court should finally resolve this question, assuming, of course, it has jurisdiction to do so.