T.G.O'R [A Minor] Suing By Her Mother and Next Friend J.O.R. v The National Council For Special Education and Ors, A.B. [A Minor] Suing By Her Mother and Next Friend M.B. v The National Council For Special Education and Ors

THE HIGH COURT JUDICIAL REVIEW [2026] IEHC 194 RECORD NO. 2025/301 JR BETWEEN T.G.O’R (A MINOR) SUING BY HER MOTHER AND NEXT FRIEND J.O.R. APPLICANT AND RECORD NO. 2025/688 JR A.B. (A MINOR) SUING BY HER MOTHER AND NEXT FRIEND,M.B. APPLICANT -AND- THE NATIONAL COUNCIL FOR SPECIAL EDUCATION, THE MINISTER FOR EDUCATION AND YOUTH, THE HEALTH SERVICE EXECUTIVE 1 RESPONDENTS JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 27th day of March, 2026 INTRODUCTION 1. These two cases were heard together before me and concern issues arising in a significant number of other cases. In essence, the Applicants each challenge how the Assessment of Need (AON) process was handled by the National Council for Special Education (NCSE) and the Health Service Executive (HSE) in relation to the nomination of a person by the NCSE to assist the HSE in the assessment of educational needs pursuant to s. 8(3) of the Disability Act, 2005 (hereinafter “the 2005 Act”). 2. The central dispute is that the NCSE is alleged to adopt a fixed, inflexible policy under Circular 0025/2024 (since replaced), whereby a school principal or teacher is automatically nominated to assist with an AON education assessment. 3. It is argued that this approach fails to consider the individual needs of the child in identifying who has “appropriate expertise” to assist in the assessment, thereby fetters the NCSE’s statutory discretion under s. 8(3) of the 2005 Act, and is unlawful, irrational, discriminatory and repugnant to Articles 40.1 and 42A of the Constitution. 4. Orders are sought quashing the NCSE nomination under s. 8(3) of the 2005 Act and the subsequent AON reports, together with declarations that the NCSE’s actions and policies are unlawful. Orders are also sought compelling the NCSE to nominate a person with appropriate expertise, such as an educational psychologist. 5. In opening the case, counsel for the Applicants submitted that were the Applicants to succeed in these proceedings, a new AON Report would be required from the HSE. 6. In response, counsel for the HSE confirmed that the Applicants were entitled as a matter of law and irrespective of the outcome of proceedings, to seek and obtain a new Assessment Report. For this reason, the HSE proposed not to take an active role in the proceedings, maintaining that once the issues between the NCSE and Minister for 2 Education and Youth (“the education parties”) were resolved, the Applicants would be entitled to a new Assessment Report upon request in any event. 7. An extension of time for the challenge is required in respect of the NCSE’s nomination, as proceedings did not issue within three months of that nomination in either case. 8. Orders made at the ex parte leave stage (Bolger J.) prohibiting the publication of identifying details on the basis that the Applicants are minors with disabilities continue in force. BACKGROUND FACTS 9. There is a significant degree of similarity between the backgrounds to each of the Applicants’ cases, although there are nonetheless important differences. I propose to summarise the background to each case in turn. In each case, the First Applicant is the minor child and the Second Applicant is the mother and next friend. TO’R 10. The Applicant was born in 2020 and has been diagnosed with Autism (ASD) and Global Developmental Delay (GDD). The following chronology appears from the papers. Application for an AON and the AON Process 11. Application was first made to the HSE for an AON under the 2005 Act in July, 2021. In September, 2021, a Preliminary Team Assessment (PTA) was completed and on the 2nd of November, 2021, a first AON Report issued indicating that further diagnostic assessment was required to determine whether the presentation was consistent with ASD. Autism diagnostic assessment was performed (ADOS/ADI-R/Vineland) in November, 2022, when the Applicant was approximately 2 years and 9 months old. 12. In January, 2023, solicitors for TO’R challenged the PTA on the basis that it was not in compliance with 2005 Act and requested a multidisciplinary ASD assessment. 3 13. In April, 2023, in correspondence addressed to the Applicant’s solicitor, the HSE requested current information on whether TO’R was in pre-school or availing of the ECCE or Home Tuition Scheme so that that “a referral to the NCSE can be made under section 8(3) of the Disability Act and in line with current procedures.” 14. In a further letter, the Assessment Officer advised the Applicant’s mother (“the Second Applicant”) that during the AON she had: “formed the opinion that there may be a requirement for an educational needs assessment to be provided through the National Council for Special Education (NCSE). I have made a referral to the NCSE for assessment. They will contact you directly to arrange any appropriate assessments.” 15. In May, 2023, the Multidisciplinary Team Report issued, diagnosing ASD and Global Developmental Delay (GDD). It was stated that the Applicant: “would benefit from multidisciplinary assessment after the age of 5 years following further time in an educational setting.” 16. In August, 2023, the Applicants’ solicitor formally requested the finalised AON Report and service statement. AON Report 17. On the 24th of August 2023, an AON Report issued (the first full “gold standard” report after MDT). The Report indicated that TO’R required supports in respect of health needs from speech and language therapy, psychology and occupational therapy. As regards education needs, it was stated that based on the diagnosis of Global Development Delay, a specialist preschool placement would represent an appropriate 4 preschool setting at that time and given her young age and difficulty engaging in standardized assessment: “she would benefit from a review of her cognitive ability when she was over the age of five and prior to starting school placement.” 18. It was expressly noted that recommendations from the NCSE Report of Educational Needs would be confirmed upon receipt of the NCSE report. It was stated in the cover letter: “As you are aware from correspondence with you by letter from the assessment of need office on 17/04/2023, you were advised that the assessment officer had formed the opinion that there may be a requirement for an educational needs assessment to be provided through the National Council for Special Education (NSCE). This referral was formerly made to the NCSE on17/04/2023. I have not received the educational assessment report yet. Once I receive it, I will update your child's assessment report and will send it to you. The service statement outlining details of the services TO’R will receive based on this report is being sent to you by the HSE liaison officer.” 19. On the 2nd of October, 2023, a service statement issued outlining the services which could be provided. The letter invited contact if circumstances changed or there was a change in the service delivered. NCSE Nomination 20. On the 26th of October, 2023, the Applicants’ solicitors corresponded with NCSE with regard to the assessment of education need requesting nomination of an appropriately qualified assessor stating: 5 “Whilst our client has no difficulty with the NCSE contacting TO’R's school for the purpose of generating information, we do not consent to this assessment being conducted by the school principal. By return, please confirm the name of an appropriate educational psychologist who will be commissioned by the NCSE to conduct an assessment of TO’R's educational needs.” 21. On the 1st of November, 2023, the NCSE responded referencing High Court test cases on educational needs assessments and confirming an intention to await the outcome of two test cases raising similar issues before taking further steps in respect of the Applicant. 22. In April, 2024, Circular 0025/2024 (NCSE Education Needs Assessment Policy) issued. 23. On the 17th of July, 2024, the Applicants’ solicitors again requested NCSE nomination other than the school stating: “Please nominate a suitably qualified person to complete this assessment… that letter should identify the expert retained by the NCSE to carry out the assessment. As this child has complex needs, we are asking you to formally consider the involvement of an educational psychologist in undertaking this assessment. We respectfully say that there is a legal duty on the NCSE to consider such an application when deciding on a suitable assessor. Our clients, therefore, have no difficulty with you liaising with the HSE to discuss their assessments so that the NCSE are in a position to determine the suitability of engaging an educational psychologist rather than relying on a school to fill out a pre-printed standard template storm to ground the Section 8(3) report.” 24. On the 24th of July, 2024, the Applicant’s solicitor received a request for information in relation to TO’R’s current educational setting to update the NCSE referral. These details were provided confirming that she was in playschool and would be starting in mainstream school two days a week on a trial basis. The HSE submitted an updated 6 referral to NCSE in which it was indicated that TO’R was on a waiting list for several education settings. 25. On the 25th of July, 2024, parental consent was confirmed by email. 26. On the 1st of August, 2024, the Chief State Solicitor's Office wrote in response to the letter of the 17th of July, 2024, confirming: “a referral in accordance with Section 8(3) of the Disability Act 2005” can progress on commencement of the school placement in September.” 27. In reply to the letter of the 1st of August, 2024, the Applicants’ solicitor wrote by letter dated the 8th of August, 2024, with reference to their request for consideration of an educational psychologist for the purpose of undertaking the complex assessment. The letter stated: “we are concerned that on foot of a recent High Court judgment the NCSE are operating a fixed policy in respect of only nominating school principals without a proper and adequate consideration of the particular needs of an individual child. We are attaching an information sheet for parents and guardians which appears to suggest that only the school principal will be nominated. We respectfully submit that this was not provided for in the recent High Court judgment of Miss Justice Bolger. In that context we are asking for proper consideration of our request of the 17th of July and for this to be done no later than 14 days from the date of this letter. In addition, the NCSE might also confirm what reports on the child's needs were considered by them in the nomination process and full particulars should be provided to us in that regard. In the absence of confirmation that the fixed policy will be set aside and that individual considerations of the needs of a particular child will be undertaken we shall have no option but to institute judicial review proceedings on the basis that have fixed policy unlawfully fetches the discretion in an individual case to 7 nominate people other than school principals to carry out this important educational assessment under the Disability Act”. 28. On the 24th of October, 2024, the Chief State Solicitors responded substantively to the letter of the 8th of August, 2024, stating: “Pursuant to section 8(3) of the 2005 Act, the NCSE is obliged to assist the HSE in ensuring the completion of the education element of the assessment of needs process. The NCSE is not obliged itself to carry out the assessment under section 8(3) of the 2005 Act. Rather the NCSE is required to nominate a person with appropriate expertise to assist in the carrying out of an assessment of education need (if any) of the AON applicant. The expertise referenced in section 8(3) of the 2005 Act is expertise in the identification of education needs. Section 8(3) of the 2005 Act provides a discretion to the NCSE to nominate the individual to carry out the review of education need under the section. This discretion is subject only to the limitation that the person appointed must have the appropriate expertise to carry out an assessment of the education needs of the AON applicant. The role of the NCSE is to consider the expertise of the person to be nominated to ensure that they are suitably qualified to identify the education need of the Applicant. As the applicant is a primary school pupil, the NCSE will in line with procedures agreed with education stakeholders, engage with the applicant school for the purpose of the section 8(3) assessment. The school authorities have been asked to complete the Report of Education Needs. The responsibility for the completion of the Report of Education Needs in schools lies with the principal or deputy principal. The form/report may be completed by the principal or deputy principal or by a teacher nominated by the principal.” 29. The letter further referred to s. 5 of the Education for Persons with Special Needs Act, 2004 (uncommenced) (hereinafter “the 2004 Act”), the Department of Education’s policy on special education and the decision in LE & CD v. HSE [2024] IEHC 11 (C.D. No. 1) each of which acknowledge the expertise of teachers in assessing educational 8 needs. It also referred to the National Educational Psychological Services (NEPS) which provides psychological supports to schools under the auspices of the Department of Education. It was stated: “The nomination of the Applicant’s school principal to assist the HSE assessment officer complies with the NCSE’s statutory obligations in circumstances where the High Court has already determined that teachers have the appropriate expertise to be nominated under the section. Furthermore, the principal and teacher can be provided with additional assistance from the NCSE, including through the NCSE advisor, if that assistance is sought by the school. Thus, there is additional facility of support available from the NCSE to support the principal and/or teacher in relation to the assessment of education needs if that is requested and required. In accordance with the relevant Department of Education Circular 0025/2020 which issued to schools, NEPS is also available to assist to advise in the process via request from an NCSE advisor who has been supporting a particular school. The requirement for NEPS advice will be considered on a case by case basis. The fact that an alternative professional may also have sufficient expertise to be nominated does not make the nomination of a teacher irrational or unreasonable, nor does it amount to the NCSE fettering its discretion under Section 8(3) of the 2005 Act in the manner as alleged in your correspondence or at all. In nominating the Applicant’s school principal, the NCSE is nominating a person with the appropriate expertise to assist the HSE assessment officer with the identification of the education needs of the Applicant. The identification of education needs is carried out without regard to the cost of or the capacity to provide, any services considered necessary to meet the needs of the Applicant. Principals and teachers are and will be supported by the NCSE to assist the completion of the report of education needs. As set out in our previous letter of 1 August 2024 the NCSE is complying with its statutory obligations in respect of the referral made by the assessment officer under Section 8(3) of the 2005 Act concerning the Applicant. The report of education needs has been with the Applicant’s school for completion since the 17 of October”. 9 30. On the 4th of December, 2024, although correspondence with the Applicants’ solicitors suggested that this had already occurred, the NCSE emailed the minor Applicant’s school, nominating the school Principal and requesting completion of the Report of Education Needs. NCSE Report of Education Needs 31. On the 12th of December, 2024, the school completed the NCSE Report of Education Needs. The pre-printed terms of the form notes that the report should be signed off by the nominated person and include the names and details of other persons involved in the completion of the report. It is expressly stated “if you require help in completing this form, please contact NCSE helpline”. It is also highlighted on the form that AON is a HSE led process and legal responsibility for the AON process lies with the HSE. It set out in express terms that the obligation on the NCSE is to nominate “appropriate persons” to assist the HSE in the AON process. 32. The form as filled in by the school in this case recorded that the nominated person had access to the prevision AON multidisciplinary team report diagnosing ASD. The form was signed by the classroom teacher as a person nominated by the Principal to compete the Report and the Principal as the person nominated by the NCSE. 33. Information was provided by the school in the completed form in relation to the Applicant’s social skills, self-help skills, social and emotional well-being, receptive communication, expressive communication, fine motor skills and gross motor skills each in the context of the Applicant’s education needs. Detailed information was also provided in relation to the Applicant’s performance and participation in class, her abilities and those areas where difficulties were apparent. It was also stated, however, that: “her lack of verbal skills result in us not knowing her true ability in school. Also as she is reluctant to follow instructions we are unsure whether she understands the instructions and is able to complete any task independently.” 10 34. In response to a question in relation to services required to meet additional education needs, psychology services to determine cognitive ability to assist her learning targets and occupational therapy services to support emotional regulation were identified. Updated AON Report 35. The HSE issued an Updated AON Report on the 17th of January, 2025. The Updated AON Report incorporated reference to the NCSE school-completed Report of Education Needs. The Updated AON Report was in identical terms to that issued to TO’R previously (without the benefit of the NCSE school-completed Report of Education Needs) except that it included a new heading “Recommendations from NCSE Report of Educational Needs” under which heading the needs identified by the Assessment Officer on the basis of information provided in the NCSE school-completed Report of Education Needs were set out. 36. The contents of the NCSE school-completed Report of Education Needs were not reproduced in full or verbatim and the Assessment Officer did not transcribe the information obtained from the NCSE as constituting the assessment. Nonetheless, additional educational needs were extrapolated from the NCSE school-completed Report of Education Needs and these identified needs were incorporated in the Updated AON Report by the Assessment Officer by way of assessment of education needs. 37. To illustrate this, it is useful to set out the information contained in the NCSE school-completed Report of Education Needs in relation to certain heads and compare it with the related contents of the Updated AON Report. In relation to social skills, for example, it was stated in the NCSE Report of Education Needs that: “TO’R doesn’t engage socially with other children when playing or doing class activities. She tends to walk away from the table if the activity isn’t engaging for her. She engages in parallel play and creates imaginary worlds within her play. She has language and can be articulate but doesn’t use it to interact with her peers. She doesn’t present as understanding or using social cues. At times 11 when she wants something she will take our hand and lead us to the things she wants. We are not always sure what she wants as she cannot verbally tell us.” 38. The Updated AON Report did not repeat this but instead noted that TO’R: “requires support to develop turn taking and play skills to further interaction opportunities with her peers”. 39. In relation to Self-help Skills, the NCSE school-completed Report of Education Needs reads: “TO’R is dependent on both adults and the classroom for basic needs. She needs assistance with dressing, undressing and preparation for eating. She has not gone to the toilet in the classroom and has only once led us to the toilet when we think she had a need to go. As she couldn't explain verbally what the problem was we were unable to help. As a result of this she can get impatient and annoyed. TO’R tends to express her needs by holding our hand and trying to show us nonverbally what she wants or needs. She is not working at an independent level and needs adult assistance for all tabletop activities.” 40. Rather than repeat or transcribe the NCSE school-completed Report of Education Needs, in the Updated AON Report the Assessment Officer states under “Self-help Skills” that TO’R required support to increase her independence in relation to daily living skills including dressing, meal times and toileting, strategies and supports to enable her express her needs to others which will reduce her frustration and upset when she is not understood and support to increase her independence in relation to tabletop activities. 41. In similar vein, under separate headings in the Updated AON Report, the Assessment Officer records an assessed need drawing from the information provided by the NCSE 12 school-completed Report of Education Needs under each of the heads of social and emotional wellbeing, receptive communication and fine motor skills. Finally, the Assessment Officer identifies that education services outlined as required to meet additional educational needs were psychology and occupational therapy. These services had already been identified in the earlier AON Report as required interventions. 42. It should be noted that the Assessment Officer does not reflect the NCSE school-completed Report of Education Needs identification of psychology services to determine cognitive ability to assist her learning targets going forward, an educator recommendation contained in the NCSE school-completed Report of Education Needs. Response to Updated AON Report 43. The Updated AON Report was furnished to the Applicants on the 20th of January, 2025. Notably, the Applicant’s solicitors did not correspond with the HSE querying the fact that an educational psychologist had not been engaged to determine cognitive ability to ensure a gold standard assessment of education need. There is no evidence that the fact that the school had identified psychology services as useful to determine cognitive ability issue has since been raised on behalf of the Applicants with the Assessment Officer whose function it was to carry out the gold standard assessment. 44. Instead of corresponding with the HSE in respect of a need for education psychology assessment and a revised AON, on the 6th of March, 2025, a judicial review application was filed in the Central Office of the High Court seeking, inter alia, to quash the NCSE nomination, the NCSE School Report of Education Needs and the Updated AON Report by reason of the failure of the NCSE to nominate an educational psychologist under s. 8(3) of the 2005 Act (nomination having been confirmed in writing to the Applicants on the 24th of October, 2024, albeit actually made on the 4th of December, 2024). 45. Leave to proceed by way of judicial review granted on the 7th of April, 2025 (Bolger J.). 13 Parallel Developments 46. In parallel with the s. 8(3) referral and the updated AON process, it subsequently transpired that independently the Children’s Disability Network Team (CDNT) had completed a cognitive review of TO’R on or about the 12th of December, 2024. The Assessment Officer was not made aware of this report of a cognitive review when carrying out the update to the Assessment Report, although the report of cognitive review was discussed with the Second Applicant on or about the 13th of December, 2024 and a copy was made available for her to collect. 47. Not only did the Applicants not make the Assessment Officer aware of the contents of the report of cognitive review but neither did they refer to it in bringing these proceedings. The cognitive review was carried out on an interdisciplinary basis by a clinical psychologist and two senior occupational therapists. The purpose of the report was stated as being to provide a “fuller understanding of her needs and to inform future educational planning”. 48. It is apparent on the face of the report of the cognitive review that it was prepared with the benefit of a visit to TO’R’s pre-school by the clinical psychologist and one of the two occupational therapists, as well as an assessment at the clinic involving input from the Second Applicant as parent. From an analysis of the report of the cognitive review, TO’R was assessed as being within the extremely low range of ability in terms of general development. Foundations of learning and language and communication skills, eye and hand coordination, personal social and emotional skills and gross motor skills, were all addressed in the report of assessment and were assessed as being significantly below the expected level for her age. It was concluded: “TO’R will require a school placement that offers a high level of adult support to ensure her health and safety needs are met and she can effectively access the educational curriculum. Following consultation with TO’R’s mother, an autism class attached to a mainstream primary school represents the most appropriate school placement option for TO’R at this time.” 14 49. It is unclear and I see no explanation on the papers before me as to why, on foot of this report of the cognitive review, the Applicants’ solicitors did not correspond with the HSE seeking a revised AON and any further psychological assessment of education need identified as necessary to ensure a “gold standard” assessment instead of proceeding by way of judicial review application seeking to quash the earlier NCSE nomination, the NCSE Report of Education Needs and the Updated AON Report by reason of the failure of the NCSE to nominate an educational psychologist. A.B. 50. A.B. was born in 2019. In June, 2022, a psychology report (on foot of a private assessment) confirmed ASD and it was reported that A.B. has significant speech, language, sensory and behavioural needs. Application for an AON and the AON Process 51. An AON application was made in July, 2023, but delays occurred in the assessment process. 52. In November 2023, A.B.’s solicitor lodged a complaint to Disability Complaints Officer due to delays. In December, 2023, this complaint was acknowledged by the HSE. By Order of the High Court (Hyland J.) (in proceedings bearing Record Number 2024 JR 55) made on consent on the 12th of March, 2024, the Court directed the HSE to determine the Applicants’ complaint to the Disability Complaints Officer made on the 20th of November, 2023 under s. 14 of the 2005 Act. 53. In March, 2024, the Disability Complaints Officer issued a final report finding that assessment should have been completed by 29th of January, 2024. Deadlines were set for assessment and service statement (April–June 2024). 54. In line with directions from the Disability Complaints Officer, an interdisciplinary report was prepared by the CDNT on foot of assessments carried out by a senior clinical 15 psychologist, a speech and language therapist and a senior occupational therapist dated the 24th of April, 2024. In this report it was stated: “A.B. is enrolled in the Early Intervention Class at [XX School] and is due to transition to [XX] Autism Class in 2024. Referral information notes that they may consider the need for a special class placement, and are listed for cognitive assessment with the CDNT due to this. It has been reported that A.B. has had significant difficulty attending school since the beginning of March 2024, with A.B. becoming very distressed with any attempts to engage in the usual morning routine. At the time of the present assessment, A.B. was not attending school or other community activities. At the time of the present assessment, parents noted that their main concern in relation to their daughter was her difficulty attending preschool (early intervention class) and engaging in community activities she had previously enjoyed….. Since March 2024, A.B. has presented with increasing difficulty attending school. She gradually reduced the morning routines she would engage in and what began as difficulty attending school increased to include difficulty getting dressed or ready or indeed leaving the house at all. A.B. will also not currently travel in the car.” 55. Having assessed A.B. under various headings, the report stated: “The nature and purpose of a cognitive and adaptive behaviour assessment was explained to parents as part of the assessment of need process. Parents understand that a cognitive assessment is not a requirement for enrolment in a mainstream school or an autism class attached to a mainstream school. They understand that should they wish to consider a special school placement for A.B. in future she will need such an assessment to ascertain if a diagnosis of an intellectual disability is appropriate in addition to her established autism diagnosis. Parents and the Psychologist were in agreement that as AB is enrolled in the Junior Infants autism class in [Name of School removed 16 to avoid identification], it would be most appropriate to review her need for a cognitive assessment after a period in school.” 56. In May 2024, the NCSE referred A.B.’s case to an early intervention class. 57. An AON referral form was filled in by the Assessment Officer on the 22nd of May, 2024 and sent to the NCSE in respect of education needs. On its face, the referral form required the return of the assessment form to the HSE Assessment Officer by the 3rd of June, 2024. AON Report and Service Statement 58. A first AON report issued dated the 18th of June, 2024. Assessments carried out by a senior clinical psychologist and a multi-disciplinary team informed this report. It identified needs in speech and language therapy, occupational therapy, behaviour support, parent training and monitoring of educational placement. Needs in psychology and parent support were also identified. She was assessed as having an ongoing need for multi-disciplinary supports. Specifically, a psychologist or behaviour specialist was identified as best placed to provide support and advice in relation to morning routines and leaving the house with an eventual return to school. It was noted that A.B. required monitoring in relation to the suitability of her educational placement and any associated cognitive/adaptive behaviour assessment needs. It was noted that either NEPS or the CDNT Psychologist could meet this need. 59. The Report stated regarding education needs: “A referral for an assessment of AB’s education needs was sent to the National Council of Special Education (NCSE). Once their report is received an updated Aon report may issue on receipt of the NCSE information, if required.” 17 60. A service statement issued dated the 5th of July, 2024, fixing the 5th of July, 2025, as the service review date and identifying ongoing speech and language therapy support in relation to receptive and expressive language and communication skills using a total communication approach. It was confirmed that she would undergo assessment for a suitable high-tech communication aid during the year. NCSE Nomination 61. Around the time the AON was being completed, the NCSE contacted the Second Applicant on foot of the referral from the HSE Assessment Officer. The Second Applicant confirms on affidavit that she was initially contacted by phone on the 30th of May, 2024. She was advised that the educational assessment would be carried out in line with Circular 0025/2024. In a further telephone call on the 4th of June, 2024 and follow up email, she was requested to consent to the NCSE contacting A.B.’s school. In her reply by return email, the Second Applicant gave permission to the NCSE to contact A.B.’s school but asked for it to be noted that she had requested for the assessment to be carried out by an educational psychologist. 62. The Second Applicant subsequently followed up to enquire if the school had been contacted. By email dated the 3rd of July, 2024, the NCSE noted that the HSE Assessment Officer had made a referral to the NCSE under s. 8(3) of the, 2005 Act. It was explained that the role of the NCSE under s.8(3) of the 2005 Act is not to carry out an assessment but instead to nominate a person with appropriate expertise to assist the HSE Assessment Officer with the review of a child’s education needs. In this email, it was stated that the consent given was conditional on an educational psychologist carrying out the assessment. It was stated that because only conditional consent had been provided to the NCSE carrying out its statutory function and nominating a person under s.8(3) of the 2005 Act, the NCSE was unable to return the Report of Education Needs to the HSE. Finally, it was stated: 18 “Should you wish to reengage with the process the NCSE will nominate a person with appropriate expertise to assist the HSE with a review of your child's education needs”. 63. The Second Applicant disputed that her consent was conditional and her consent to contact with the school was confirmed by email dated the 11th of July, 2024. 64. The Applicants’ solicitor wrote to NCSE by letter dated the 17th of July, 2024, to again confirm consent and to repeat the earlier request for nomination of educational psychologist. In this letter, it was claimed that the NCSE was operating an unlawful fixed policy. The letter requested that the NCSE and HSE liaise to consider A.B.’s specific profile stating: “As you acknowledge, our client wishes to have an educational psychologist considered to carry out an assessment. You are correct to say that a recent court judgment found that teachers in appropriate cases have appropriate expertise and may be suitably qualified to be nominated by the NCSE to assess a child's educational needs. That, however, is not the end of the matter. We say that there is an obligation on the HSE to consider in each case who it is suitable to nominate in the individual circumstances of that case. We say that a parental request for an educational psychologist to engage in the process is a factor that should be taken into consideration in that regard. We also are concerned that the NCSE is now operating a fixed policy in relation to the nomination of schools and teachers in all cases. This is not what was provided for within the judgment. We are also concerned that this fixed policy of nominating schools only to carry out the assessments and for the filling out of a standard template form fails to take account of the individual considerations of a child in question. This nomination is also being done by the NCSE without knowing anything about the child and the level of complexity of their needs. 19 We therefore call upon the NCSE to liaise with the HSE, in order to ascertain the particular profile of the child so that a proper consideration can be given as to who is the nominated expert. We ask that you would engage in this exercise and specifically address the consideration as to who should be nominated, bearing in mind that our clients wish to have an educational psychologist to be the section 8(3) assessor and for good reason. Please confirm that you will liaise with the HSE to undertake this exercise and that you will consider the nomination of an educational psychologist in respect of this matter our clients have no difficulty with you liaising with the HSE to consider their reports on the child. Please confirm that such consideration will be given within 14 days of the date of this letter and the determination and the assessor is made outside of the fixed policy currently operating, as otherwise judicial review proceedings will have to issue based on what is an apparent inflexible and fixed policy on the part of the NCSE in meeting their statutory obligations under the Disability Act.” 65. By letter in August, 2024, the Respondents’ solicitors confirm that the nomination under s.8(3) would progress in September “on commencement of the school term”. There was no substantive engagement with the terms of the letter of the 17th of July, 2024. 66. On the 1st of October 2024, the Applicant’s solicitor wrote to inform the NCSE that A.B. had started in national school in an autism class. Clarification on assessor nomination was sought as follows: “This is unclear as to whether or not the NCSE has yet made a determination as to who the nominated assessor to assist in the completion of the assessment of need is to be. Please refer to our previous correspondence in that regard and ask that you clarify your client’s position no later than 7 days from the date of this letter.” 20 67. The clarification on assessor nomination sought does not appear to have been provided at that time. 68. Under cover of email dated the 15th of October, 2024, the solicitors for the Applicants wrote a letter of the same date to the Assessment of Needs Office requesting a copy of the s.8(3) request sent to the NCSE by the HSE. By email dated the 16th of October, 2024, the HSE Legal Administrator for wrote to the Assessment Officer with reference to this request. By letter dated the 22nd of October, 2024, the Assessment Officer wrote to the solicitors for the Applicants attaching a copy of the Request Form dated the 22nd of May, 2024. 69. By email dated the 23rd of October, 2024, to the Applicant's solicitors, the Assessment Officer acknowledged that she had missed the Second Applicant’s email to the NCSE, which was copied to her on the 11th of July, 2024 and in which she had confirmed her consent. The Assessment Officer informed the Second Applicant that she had contacted the NCSE to request an update and asked that the request be escalated. 70. On the 31st of December, 2024, the NCSE contacted the Second Applicant seeking additional information “in order to nominate an appropriate person”. The information sought was limited to the child’s name and date of birth and information as to whether A.B. was in a school or ELC setting or had a home tutor and, the contact details of any such. The information requested was provided by email dated the 3rd of January, 2025, by the Second Applicant. 71. By email dated the 16th of January, 2025, the NCSE wrote to the Second Applicant to confirm that the First Applicant's School Principal had been nominated to complete the Report of Education Needs for A.B. NCSE Report of Education Needs 72. The First Applicant’s school completed a Report of Education Needs dated the 28th of January, 2025, using a template form. 21 73. The pre-populated portion of the template form stated that the report was to be completed in accordance with Circular 0025/2024. It required identification of the persons nominated by the principal to compete the report of education needs and provides for signature by the principal or deputy principal. 74. In A.B.’s case, the Report of Education Needs for the purposes of AON was completed by her autism class teacher and her mainstream class teacher and signed off by the School Principal. The Report was only received by the Second Applicant on the 11th o f February, 2025. As appears from the completed Report, A.B’s school were still determining her level of receptive language, her communication with school staff has been limited to her physically showing them what she wanted and did not want and they were awaiting guidance from A.B.’s Speech and Language Therapist to implement a plan and goals for using an AAC device. 75. In relation to maths and numeracy it was stated that: “We are still gauging AB's understanding of number and maths concepts. She can count but does not assign value to a number in class e.g. She knows 3 but doesn't count out 3 blocks to match. It could be that she can do this but doesn't understand that that is what we want her to show us: She cannot yet write numbers. She has been unable to show understanding of grouping or patterns or more or less. She knows colours and shapes.” 76. In relation to language and communication, the Report stated: “This is our priority area for AB. She uses very few words in school and the majority of her communication is physical or making noises that we don't understand. She is using words for colours and says the alphabet and counts and has phrases such as "be careful"· She also says the name of some items in her personal books. As aforementioned AB can recite whole books and her personal books. We are looking forward to learning how to use her AAC device with her to increase communication both ways. In school it can be 22 difficult to ascertain AB's understanding and most instructions are supplemented with visual cues. She completes a weekly listening test, with an SNA, and gets the colour part correct.” 77. Similar information was provided under other headings including social/emotional self- regulation skills, motor skills, life skills and independence skills. 78. It was emphasised in the report that the school were still determining receptive language levels. In relation to services recommended by her teacher, occupational therapy, speech and language therapy and activities to build core strength and promote well- being were identified. The report recorded that the majority of A.B.'s communication was of a physical nature or making noises that the school did not understand and that it was difficult to ascertain her understanding. 79. The completed Report of Education Needs was forwarded to the HSE by email dated the 30th of January, 2025. Updated AON Report 80. An Updated AON Report was issued by assessment dated the 11th of February, 2025. It relied on school data as having identified the following education needs of A.B.: “Communication is a priority for the school AB uses few words and her communication is physical or making noises AB needs support with the developing her oral language. Communication with school staff has been limited and they are still determining her level of receptive language. AB has received an Augmentative Alternative Communication (AAC) device and school staff are awaiting guidance from her speech and language therapist to implement a plan and goals. 23 The school are still determining AB’s 's understanding of numbers and maths AB demonstrates sensitivity to noise and wears ear defenders to manage discomfort. She needs a quiet environment and nursey rhymes to calm her when dysregulated She requires a structured routine and activities introduced with sensitivity AB's fine and gross motor skills are a challenge for her. The school have received advice from her occupational therapist and SNA support is essential in incorporating muscle building into the school day.” 81. Education services required to meet the additional education needs of A.B. were identified by the Assessment Officer as occupational therapy, speech and language therapy and activities to build core strength and promote wellbeing e.g. horse riding, swimming. A revised service statement also issued. A copy of both the Updated AON and the NCSE report was furnished to the Second Applicant under cover of letter dated the 11th of February, 2025. Subsequent to Updated AON Report 82. In February, 2025, A.B. experienced severe anxiety resulting in school refusal/autistic burnout. She stopped attending school. This was the third such episode across placements. Her school Principal wrote by letter dated the 28th of March, 2025, notifying “very significant changes” and advising that A.B. urgently required an educational psychology assessment. In this letter, addressed “To whom it may concern" it was stated: “On the advice of the NCSE, I have linked in with as many services as possible to secure additional supports to help A.B. return to school….. It is not clear at this time what the path is for her return to school and what steps need to be taken for this to occur in light of this, it is my view that A.B. Urgently requires an educational psychology assessment.” 24 Response to Updated AON Report 83. By letter dated the 3rd of April, 2025 (enclosing the letter of the 28th of March, 2025 from the school principal in relation to A.B.’s autistic burnout and school absence), the Applicant’s solicitor wrote to the solicitors for the NCSE referring to the fact that A.B. had been out of school since the 4th of February, 2025. No similar letter was written to the HSE or the Assessment Officer. It was pointed out (presumably with reference to the Updated AON but without expressly so stating) that NEPS cannot assess an absent child. It was contended that the NCSE school report was “wholly inadequate.” It was stated: “The fixed policy that the NCSE have adopted in relation to nominating only school teachers and principals to conduct these assessments is we respectfully suggest unlawful.” 84. In this letter, the Applicant’s solicitor repeated the earlier request for nomination of an educational psychologist to update the child’s assessment of needs, warning that A.B.’s constitutional rights were compromised. The letter concluded: “We call upon you to confirm that an educational assessment will be commissioned no later than 7 days from the date of this letter and look forward to hearing from you in that regard. In the absence of agreement to the above we shall have no option but to institute judicial review proceedings as against the minister for education and the NCSE in respect of this matter.” 85. Notably, no correspondence issued to the HSE requesting a new AON informed by assessment by an educational psychologist either in light of the very significant changes communicated by the School Principal and the expressed need for an educational psychology assessment supported by the school or the fact that an educational psychologist had not been nominated to assist in the assessment of education need 25 during the AON process, despite the request for same. Instead, on the 16th of May, 2025, a Statement of Grounds and Grounding Affidavits were filed in the High Court (in circumstances where the NCSE nomination had been communicated on the 16th of January, 2025). 86. Leave to proceed by way of judicial review was granted on the 7th of July, 2025, (Bolger J) to challenge the NCSE nomination and the Updated AON which ensued based on information contained in the NCSE Report. GROUNDS OF CHALLENGE AND OPPOSITION 87. Although there are some factual differences between the cases as summarized above and verified by affidavits (sworn by the mother and next friend in each case grounding these proceedings), the legal grounds advanced in both cases are almost identical. On behalf of each Applicant, it is argued that the NCSE and HSE failed to comply with statutory duties imposed by the 2005 Act. 88. A central legal ground is the contention that NCSE operated an inflexible, blanket policy of nominating only school personnel, typically teachers or principals, to conduct s. 8(3) educational needs assessments, although properly the obligation is to assist in the conduct of the assessment. It is alleged that this unlawfully fettered NCSE’s statutory discretion, which must be exercised on a case-by-case basis and was irrational, unreasonable and ultra vires the 2005 Act in the absence of individual consideration of the circumstances of the case. It is contended that by applying this blanket policy the NCSE ignored the child’s individual needs, where an educational psychologist was clearly the appropriate expert. It is contended that there was a failure on the part of the NCSE to properly consider requests for appointment of an educational psychologist. It is argued that Circular 0025/2024 misstates the law, treating teachers as inherently suitable in all cases. Accordingly, it is contended that Circular 0025/2024 is ultra vires the 2005 Act. 26 89. It is no part of the case as pleaded on behalf of either minor Applicant that the HSE failed to meet its obligations under s. 8 of the 2005 Act by failing to secure a report from an educational psychologist. The primary relief sought against the HSE in the case as pleaded is consequent upon the alleged failure on the part of the NCSE to properly exercise its power to nominate a person with appropriate expertise to conduct an assessment. This argument is grounded on the contention that the school nominee did not have the appropriate expertise to identify “full educational needs or services required” and that owing to the failure of the NCSE to appoint a person with appropriate expertise, the assessment under s. 8(3) fell short of the “gold standard” required. 90. Separate opposition papers were filed on behalf of the Education parties and the HSE. 91. Opposition papers filed on behalf of the Education parties were grounded on an affidavit from an Assistant Principal Officer at the NCSE and a Principal Officer at the Department of Education. 92. In the Affidavit sworn on behalf of the Minister for Education, reliance is placed in the process developed to deal with the identification of children’s special or additional educational needs as part of the “Continuum of Support” process in schools. This is described as “a problem-solving process of assessment, intervention and review that enables schools to identify need, to plan interventions and to monitor the progress of the individual students with special educational needs.” It is confirmed that the process was developed by National Educational Psychological Service (“NEPS”) and “involves dynamic and cyclical identification of educational need including the identification of education service need.” The Continuum of Support (Resource Pack for Teachers) and the Continuum of Support (Guidelines for Teachers) are exhibited. 93. Weight is attached by the Education parties to the training teachers receive as part of their professional formation in assessment processes and the identification of educational need. Reliance is also placed on extensive guidance material issued by the Department of Education for teachers in relation to identification of and provision for education needs. 27 94. It is contended that any duty imposed by s. 8(3) on the NCSE is owed to the HSE and not the Applicants. Time points are raised in both cases insofar as the challenge to the nomination by the NCSE of the School Principal is concerned. Great emphasis was placed on the statutory role of the NCSE under the 2004 Act, the responsibility of the Minister under s. 7 of the 1998 Act and the confined function under s. 8(3) of the 2005 Act to nominate a person with appropriate expertise to assist in carrying out the assessment under s. 8. Reliance is also placed on the duty of the Board of Management under s. 14(1) of the 2004 Act, the function of the school under s. 9 of the 1998 Act and the duties imposed on teachers under s. 22(2)(d) of the 1998 Act. 95. It is pleaded that the nomination of the person under s.8(3) of the 2005 Act is within the discretion of the NCSE, subject to the NCSE being of the opinion that the person has the appropriate expertise to assist with a review of the education service needs of the AON applicants. It is further pleaded that a professionally qualified teacher has been held to have the appropriate expertise to be nominated by the NCSE to assist the HSE Assessment Officer with the assessment of the education needs of an AON applicant. 96. Reliance is placed on Circular 25/2024 which is referred to as setting out “the process to be adopted by the NCSE in respect of requests made by Assessment Officers under s.8(3) of the 2005 Act where the AON applicant is attending a recognised primary or post-primary school.” The Circular was issued following the judgment of Ms. Justice Bolger in C.D. No. 1 97. It is further pleaded: “The Minister was entitled to issue the Circular in circumstances where it concerned the First Respondent, which is a body that comes under the responsibility of said Minister. This was confirmed by Ms. Justice Bolger in CD. v HSE (No. 2) [2025] IHEC 287.” 98. The Education parties also plead that the identification of the education needs of their students is one of the core functions of a teacher and it is a statutory duty of a recognised 28 school to ensure that the educational needs of all students, including those with a disability or other special educational needs, are identified and provided for. It is pleaded that a teacher is an education professional with day-to-day knowledge of the education needs of their pupils and accordingly best placed to assist the Assessment Officer with the identification of education needs as part of the AON process. 99. It is pleaded that the Circular 25/2024 identifies the role of the nominated teacher as being to assist the HSE Assessment Officer by completing the Report of Education Needs which involves the identification of the education needs of an AON applicant and the services which might be required by the AON applicant. It is contended that this is done on a resource blind basis in line with the provisions of the 2005 Act. The Education parties maintain that Circular 25/2024 does not purport to establish an inflexible policy. It expressly acknowledges that there may be instances where a teacher or school may not be in a position to complete a Report of Education Needs at the request of the First Respondent. In addition, it is pointed out that the NCSE has nominated persons other than teachers to provide assistance under s.8(3) of the 2005 Act on foot of requests from the HSE. 100. It is denied that there was no consideration of individual circumstances thereby rendering the nomination irrational or unreasonable. Despite this assertion which appears to confirm individual consideration of each case, no evidence of the individual consideration given in each case is offered (as in when it was considered, by whom it was considered and the reason for nomination in accordance with the Circular and not otherwise). 101. It is maintained that a teacher has the appropriate expertise to assist with the identification of the education needs of one of their pupils. The fact that an alternative professional would also have sufficient expertise to be nominated does not make the nomination of a teacher irrational or unreasonable, nor does it amount to the NCSE fettering its discretion under the provisions of s.8(3) of the 2005 Act. 102. It is acknowledged in the Statement of Opposition of the Education parties that in C.D. v. HSE (No. 2) [2025] IHEC 287 it was held that there may be legitimate reasons for a teacher to refuse to provide the assistance sought under s.8(3) of the 2005 Act which 29 were not set out in the Circular. It is pleaded that following the decision of Bolger J. in C.D. (No. 2), the Second Respondent has engaged with relevant stakeholders in order to update the Circular, solely in respect of the instance in which a teacher may legitimately refuse to provide the assistance sought under s.8(3) of the 2005 Act. While it was acknowledged that there may be circumstances in which it is legitimate for a school to decline to provide assistance under s.8(3) of the 2005 Act, it was pointed out in both cases that the School Principals involved were satisfied to accept nomination and to provide assistance to the HSE Assessment Officer. They were made aware of supports available from the NCSE in this regard. 103. In a supplemental affidavit, the new Circular 69/2025 which issued on the 7th of October, 2025, is exhibited. The deponent for the NCSE confirmed on affidavit that Circular 69/2025 applies only to the nomination of teachers by the NCSE under s.8(3) of the 2005 Act. She confirms, however, that the NCSE has, in particular instances, when a request has been received from the HSE, also nominated persons other than teachers to provide the assistance requested under s.8(3) of the 2005 Act, such as former School Inspectors, former Early Years Inspectors and NCSE AON Associates. A NCSE AON Associate is described as “a qualified teacher with a Teaching Council Number who is contracted to work with the NCSE.” 104. The HSE’s Opposition papers are grounded on affidavits from the Assessment Officer in each case. It is pleaded that the Updated AON in each case was informed by an interdisciplinary report including input from a clinical psychologist addressed to both health and education needs. It is also pleaded that as the AON Report was provided in each case in 2024 without the benefit of the NCSE Report, the challenge was significantly out of time and time did not recommence with the provision of the revised report. 105. Insofar as the case relates to the AON carried out by the HSE, specifically the case made that the Assessment Officer carried out no independent assessment and failed to reach her own findings in respect of educational needs and services, it is contended that an alternative remedy is available under the statutory process prescribed in the 2005 Act. Reliance is also placed on the possibility of applying for a new AON report under 30 and the obligation on the HSE to provide such a report if requested in either of these cases in accordance with s. 9 of the 2005 Act. 106. In its pleadings, the HSE stands over the Updated AON Report reiterating that the assessment was based principally on the assessments carried out by MDT clinicians from the (CDNT). The updated AON Report, informed by information from the NCSE, left unchanged the Assessment Officer's findings and determinations as regards the Minor Applicant's health and education needs in each case. In preparing the Updated AON Report, it is pleaded in both cases that the Assessment Officer had considered the results of the interdisciplinary assessment and made findings and determinations on that basis as to each of the Minor Applicant’s health and education needs. It is contended that the Assessment Officer recorded education needs alongside health needs in the Updated AON Report. 107. It is pleaded that the update to the Assessment Report incorporated information obtained by the Assessment Officer from the Report of Education Needs, which were treated as of assistance, did not otherwise alter the findings and determinations made by the Assessment Officer of the matters at s.8(7). It is denied in the Statement of Opposition that the needs identified in the updated Assessment Report “mirrored precisely the services identified” in the Report of Education Needs and to the extent that recommendations obtained by way of assistance provided through the s.8(3) process (or identified in other assessments), are reflected in the Assessment Report, it is contended that this was entirely appropriate and to be expected. The Assessment Officer in A.B.’s case confirms on oath: “the updated Assessment Report reflected my own findings and determinations on the matters I was required to address under s.8(7). I made those findings and determinations by reference to the material which I, as Assessment Officer, had gathered in the course of the Applicant child's assessment under Part 2 of the Disability Act.” 31 108. Similarly, as occurred in the case of TO’R, the Assessment Officer in the case of A.B. confirmed that that she did not see any need to alter the statement of education needs contained in the earlier AON Report but updated the relevant subheadings by reference to the contents of the Report of Education Needs to take account of the new information furnished through the s.8(3) process. In the TO’R case, the Assessment Officer confirmed that she was neither made aware of the cognitive assessment carried out in December, 2024, by the disability services nor asked to carry out a new assessment in the light of its contents and the assessment of educational need contained in that Report from which it was recommended that T’OR be placed in an autism class attached to a mainstream primary school. 109. In like manner, in the case of A.B. it was confirmed that the HSE was not party to the correspondence dated the 28th of March, 2025, from the School Principal stating that A.B.’s education needs had changed significantly and did not receive a copy before commencement of litigation. Accordingly, no request was directed to the Assessment Officer post delivery of the Report of Education Need or change in circumstances as communicated by the school for psychological input as part of the Assessment Officer’s assessment of education need under the 2005 Act. LEGAL FRAMEWORK 110. In C.M. v. HSE [2021] IECA 283 Donnelly J. outlined the interwoven approach in different legislation to the assessment of disability needs. She described the ideals underpinning the 2004 Act enacted by the Oireachtas to provide for educational needs assessment and education provision for children with disabilities, pointing out that these ideals were not realised as crucial parts of the 2004 Act had not then been commenced. Referring to provision in the 2005 Act for the assessment of health needs and educational needs and service provisions, she noted that it too had only been partially commenced. Indeed, even now, both the 2004 and 2005 Acts remain only partially commenced requiring the Court to navigate a labyrinthine patchwork of statutory provisions when determining the scope of legal responsibilities in meeting the complex needs of a disabled child. 32 111. Given the centrality of the NCSE’s role to the dispute, it is useful to begin with its statutory function. The NCSE was established by s.19 of the 2004 Act. Its remit is significantly restricted by the failure to commence key sections of the 2004 Act which confer statutory rights to assessment, education plans and appeals processes on children with special educational needs. 112. By S.I. No. 507/2005, ss. 1, 2, 14(1)(a), 14(1)(c), ss. 19-37, ss. 40-44, ss. 50-53 of the 2004 Act are operative. A commencement order has yet to be made under s.53(2) of the 2004 Act in respect of the core statutory framework for assessments, educational plans, appeals, and service provision under ss. 3-13, s.14(1)(b) and 14(1)(d)-(f), ss. 15– 18 and ss 38–39. Notably, ss. 4 and 5 of the 2004 Act providing for assessment of a child’s educational needs have not been commenced. In their non-commenced terms, ss. 4 and 5 seek to impose educational assessment duties on the HSE and the NCSE in respect of children not in school and children in school respectively. 113. Although ss.4–5 of the 2004 Act have not been commenced, the Applicant relies upon them as interpretative aids because they illuminate the approach to assessment of educational need envisaged by the Legislature when introducing the 2004 Act and the statutory meaning of “appropriate expertise” in the education-needs context. In C.M. v. HSE, the Court of Appeal (at para. 58) considered it proper to strive to give an interpretation to both the 2004 and 2005 Acts which respects the fact that they were enacted within a short space of time of each other, and deal, to a substantial degree, with the same issue (educational needs of children), and furthermore have clearly interlinked provisions. 114. Section 4(2) and (3) of the 2004 Act provide: “(2) Where the Council is of the opinion that a child who is a student has or may have special educational needs it shall, unless an assessment under section 3 of the child is being or has been carried out, cause an assessment under this section of that child to be carried out. (3) Where the parents of a child are of the opinion that the child has or may have special educational needs they may request – 33 (a) the relevant (sic) health service executive, or (b) in the case of a child who is a student, the Council, to cause an assessment under this section of the child to be carried out.” 115. Section 5(1) gives examples of appropriate expertise and provides as follows: “An assessment under section 4 shall be carried out with the assistance of persons possessing such expertise and qualifications as the Health Service Executive or the Council considers appropriate; those persons may, in the discretion of the Health Service Executive or the Council, include one or more of the following: (a) a psychologist; (b) a medical practitioner; (c) the principal of the school which the child is attending or a teacher of that school nominated by the principal; (d) an appropriately qualified social worker; (e) a therapist who is suitably qualified…” 116. Section 14 of the 2004 Act, addressed to the duty of schools. is only partially commenced. Section 14(1)(c), which requires a Board of Management of a school to co-operate to the greatest extent practicable with the NSCE and to provide to the Council such information as the Council may from time-to-time reasonably request for the performance by it of its functions, is operative. 117. The functions of the NCSE are set out in s. 20 of the 2004 Act and this provision is operative. Functions include consultation with schools and the HSE to plan and coordinate the provision of education and support services to children with special educational needs, to ensure that the progress of children with special educational needs is monitored and reviewed at regular intervals and to assess and review the resources required in relation to educational provision for children with special needs. Pursuant to s. 20(3)(a) of the 2004 Act, the NCSE is obliged in the performance of its functions to implement the policies relating to education generally and the education of children with special educational needs which are formulated, from time to time, by the Minister for Education. 34 118. The Applicants rely on multiple provisions of the 2005 Act. Part 2 of the 2005 Act establishes a statutory scheme for the assessment and identification of the health and education needs of children suspected of having a disability. Accordingly, while the educational assessment provisions of the 2004 Act have not been commenced, s. 8 of the 2005 Act which envisaged assessment of educational need in conjunction with the NCSE in discharge of its functions under the 2004 Act, have been. 119. The 2005 Act imposes independent and non-delegable duties on the HSE and prescribes the limited, defined role for the NCSE. Under the 2005 Act, the AON conducted by an assessment officer appointed by the HSE culminates in a single statutory Assessment Report and, where disability is found, a service statement must also be provided. The NCSE has a role in assisting the HSE in respect of the preparation of an AON report in the manner set out under s.8(3) of the 2005 Act. 120. Section 8(3) imposes a duty on the NCSE to nominate “a person with appropriate expertise” and provides the statutory basis for the NCSE’s involvement as follows: “Where an assessment officer is of opinion that there may be a need for an education service to be provided to an applicant, he or she shall, as soon as may be, request the Council in writing to nominate a person with appropriate expertise to assist in the carrying out of the assessment under this section in relation to the applicant and the Council shall comply with the request.” 121. In C.M. v. HSE, the Court of Appeal observed with regard to the proper interpretation of s. 8(3) (at para. 59) that: “Section 8(3) makes it mandatory for the Council to nominate a person to assist with that provision.” 35 122. While the duty to nominate is mandatory and non-delegable, nonetheless the role of the NCSE is limited under the terms of s. 8(3) of the 2005 Act to the nomination of a person with appropriate expertise to assist the HSE Assessment Officer in the carrying out of the assessment of the AON applicant's education needs. The nominated person is not under a duty to carry out the assessment. The duty on the NCSE is activated only where the Assessment Officer, charged with conducting an assessment for the HSE under the 2005 Act, forms a view that education needs may arise. 123. Once a request is made for assistance under s.8(3), the NCSE must make a nomination of a person with appropriate expertise. There is no corresponding duty prescribed whereby the nominee is required to accept a nomination to provide assistance. Under the statutory scheme, the nominated person’s role is confined to assisting the HSE Assessment Officer, not replacing or supplanting the statutory assessment under s. 8 with a separate assessment under the 2004 Act. It is noted that under the Scheme of the 2004 Act (largely still inoperative) some division of assessment function was envisaged as between the NCSE and the HSE. 124. While a function was envisaged for both the HSE and the NCSE to some degree, it was envisaged under the general scheme that the NCSE would have responsibility in respect of in-school children and the HSE would have that responsibility for assessments of education needs under the 2004 At for out-of-school children (see para. 83 of C.M. v. HSE). Importantly, however, it could not be said that the HSE had no involvement in the assessment of education need under the 2005 Act such that the failure to commence provisions of the 2004 Act meant that there was no legal responsibility to assess educational need. It was never intended that the HSE could direct the NCSE to carry out an educational assessment in discharge of its obligations under s. 8 of the 2005 Act. Even within the uncommenced s. 4 of the 2004 Act there is no “referral” by the HSE to the NCSE for the purposes of the carrying out of an assessment under the section. Instead, it was envisaged that either the HSE or the NCSE would cause the assessment to be carried out (para. 86 of C.M. v. HSE) but in view of the uncommenced status of assessment duties intended for the NCSE, the only operative obligation to assess education needs rests with the HSE at this time. 36 125. There is now no ambiguity that the role of the NCSE under s.8(3) of the 2005 Act is not to carry out any assessment, but instead to nominate a person with appropriate expertise to assist the HSE Assessment Officer in the carrying out of the assessment under the section. The interaction of the respective assessment functions under the 2004 and 2005 Acts was addressed in C.M. v. HSE as follows (at para. 21): “The Disability Act was intentionally broader in scope that the EPSEN Act as it also covered health needs. Furthermore, it covered the assessment of the educational needs of an adult (whether the Act included the assessment of the educational needs of a child is of course the issue in this judgment.) The EPSEN Act assessments of educational needs only covered an adult to the extent that they were a student in a primary or post-primary school.” 126. Section 8(7) of the 2005 Act addresses the Assessment Officer’s obligation to make independent findings and prescribes the mandatory contents of the final statutory Assessment Report as follows: “A report under subsection (6) (referred to in this Act as ‘an assessment report’) shall set out the findings of the assessment officer concerned together with determinations in relation to the following— (a)… (b) in case the determination is that the applicant has a disability— (i)… (ii) a statement of the health and education needs (if any) occasioned to the person by the disability.” 127. This provision places a non-delegable duty on the Assessment Officer to reach their own findings; determine the child’s education needs and integrate any “assistance” provided under s.8(3) into an independent statutory evaluation. 128. Section 8(5) dictates that the assessment be “resource-blind” requiring that the assessment be conducted: 37 “without regard to the cost of, or the capacity to provide, any services identified…” The assessment has been described as a “‘gold standard” assessment. 129. Section 8(9) provides for a referral by an assessment officer who identified a need for the provision of an education service to refer the matter for the purposes of an assessment under ss. 3 and 4 of the 2004 Act. As these provisions of the 2004 Act have not been commenced, this pathway is not open to the Assessment Officer. Nonetheless, it is clear that it was envisaged that where an assessment under s. 8 of the 2005 Act identifies the need for the provision of an education service in the case of a child enrolled in a school, the assessment officer would refer the matter to the principal of that school for the purposes of an assessment under s. 3 of the Act of 2004. In any other case, it was envisaged that the Assessment Officer would refer the matter to the NCSE for the purposes of an assessment under s. 4 of the Act of 2004. As pointed out in C.M. v. HSE, s.8(9) can only be utilised after the receipt of the AON report issued in conformity with the 2005 Act. In other words, it is only engaged at the conclusion of the process that is commenced by section 8(3) and constitutes a separate or further pathway for educational needs assessment. 130. Section 9 of the 2005 Act provides for a right to seek an assessment. Section 9(8) provides for a further application in a case where an application was previously made where there has been a material change of circumstances, further information has become available which either relates to the personal circumstances of the applicant or to the services available to meet the needs of the applicant, or a material mistake of fact is identified in the assessment report. Under s. 9(7), the HSE may only refuse application for an assessment if an assessment has been carried out and the period for review of the assessment has not expired or in the case of a child, the assessment has been carried out within the period of 12 months before the date of the application. It is common case that the child applicants in these proceedings are both now entitled, as of right, to make application for a new Assessment of Need. 38 131. Section 10 requires that the assessment be carried out in a manner which confirms to standards set under that provision. Consequent upon standards prescribed, the AON Assessment Report duly completed should comply with HIQA’s Standards for the Assessment of Need. 132. Section 11 provides for the provision of service statements but s. 11(6) requires that: “a Service Statement… shall not contain any provisions relating to education services where the subject of the statement is a child.” 133. This limitation applies after the assessment. It has been found that it does not diminish the requirement in s.8(7) that the statutory assessment itself must identify education needs (C.M. v. HSE). The fact that s. 11 does not contain service provision in relation to educational services is best understood within the scheme of the interwoven provisions of the 2004 and 2005 Acts. The s. 8(3) and s. 8(9) provisions in the 2005 Act were tailored to dovetail with the 2004 Act in a manner which makes the pathway to education service provision dependent on an assessment under the 2004 Act and reflects a division of responsibility between State actors charged with duties regarding the delivery of health and education services respectively. 134. Under the 2005 Act, in the health sphere of activity, it is the statutory responsibility of the Assessment Officer to coordinate the full AON and prepare the Assessment Report and Service Statement, albeit that the Service Statement does not address educational services because it had been envisaged that the provision of such services would be governed by the 2004 Act. 135. The former Circular whose provisions it is sought to impugn in these proceedings expresses itself as relying on the Education Act, 1998 (hereinafter “the 1998 Act”) for the proposition that schools are responsible for identifying the education needs of their pupils. Pursuant to the provisions of s.7 of the 1998 Act, the Minister’s functions include the determination of national education policy and the planning and co- 39 ordination of the provision of education in recognised schools and centres of education along with support services. 136. Section 9 of the 1998 Act provides that it is a function of a recognised school to provide education to students which is appropriate to their abilities and needs and that a school shall, inter alia: "ensure that the educational needs of all students, including those with a disability or other special educational needs, are identified and provided for" 137. The functions of the Board of Management are set out in s. 15 of the 1998 Act and include performing the functions conferred on it and on a school and doing so in accordance with the policies determined by the Minister from time to time and cooperating with the NCSE in the performance by it of its functions under the 2004 Act relating to the provision of education to children with special educational needs. 138. Under the broad structure of the 1998 Act (more particularly ss. 22 and 23) the Principal has overall responsibility for the day-to-day management of the school and is accountable to the Board of Management for school management and teachers share responsibility for instruction and contributing to students’ education and personal development, under the direction of the Principal. Section 22(2)(d) of the 1998 Act provides that teachers shall carry out those duties as assigned to them by or at the direction of the Principal. In addition, the s. 22 provides that Principals shall carry out such duties as are assigned to them by their Board. Under s. 22, teachers in a recognised school work under the direction of the Principal and have both instructional and broader educational responsibilities including evaluation of progress and periodic reporting of evaluation results and the performance of duties assigned to them by or at the direction of the Principal subject to their contract of employment or any applicable collective agreements. 40 CIRCULAR 0025/2024 139. Circular 0025/2024 was issued by the Department of Education in April, 2024. It was addressed to managerial authorities, principals and teachers of recognised primary, secondary, community and comprehensive schools and the chief executives of education and training boards. Notably, the Circular is not addressed to the NCSE. This Circular replaces and supersedes Information Notes SE 0002/2022 and SE 0001/2023 (referred to in C.D. No. 1). 140. The Circular makes clear that AON is a statutory process under the 2005 Act and the HSE is responsible for the process. It spells out that the 2005 Act requires an Assessment Officer, working for the HSE, to determine the health and education needs of an AON applicant. If an Assessment Officer forms the opinion that there may be a need for an education service to be provided, then the NCSE has a statutory obligation to nominate ‘appropriate persons’ to assist the HSE in the assessment of this educational need. 141. The Circular does not refer to any procedure for assessing whether a teacher has appropriate expertise for a particular child but states that the Department of Education is satisfied that teachers are suitably qualified and therefore ‘appropriate persons’ to be nominated by the NCSE to assist the HSE in the AON process. The Circular explains that teachers are suitably qualified due to their expertise and professional judgment, and this position has been upheld in a recent court judgment (an apparent reference to C.D. No. 1). 142. In terms of the obligations on the school, it is noted that one of the functions of a school under the 1998 Act is to ensure that the education needs of all children/young people, including those with disabilities or special educational needs, are identified and provided for. Further, it is noted that the