HSE refusal to allow boy seek supports outside home area is challenged

The family of a young boy with significant health and educational needs has brought a High Court challenge against the HSE’s refusal to allow him to seek the support services he needs outside of his home area.

The action has been taken on behalf of a two-year-old boy with development delay and suspected autism, who cannot be named for legal reasons.

The boy claims that the HSE’s decision earlier this year not to allow him to seek certain health services outside of the designated functional area where he resides “plainly flies in the face of fundamental reason and common sense”.

The court heard the boy is non-verbal, has poor social skills, difficulty walking, or holding items such as beakers and spoons.

He has been assessed as needing psychological, occupational therapy, speech and language and physiotherapy as soon as possible.

The boy’s family claim that despite being informed of his needs in late December 2021, it was also indicated to them that such services would not commence until January 2023. Such a delay, the family believes, would have adverse permanent consequences for the boy.

The Dublin based boy’s family applied under regulations governing such applications, to be considered for services outside of the functional area he lives. This was done in the hope that the waiting lists in other areas might be shorter.

Under the 2021 Disability (Assessment of Needs, Service Statements and Redress) Regulations anyone seeking such services outside of their home area must establish that ‘exceptional circumstances’ exist to the satisfaction of the HSE.

Last March an official with the HSE refused the application, after holding that the exceptional circumstances did not arise that would allow the boy avail of services in a functional area outside of where he resides.

Represented by Feichin McDonagh SC, with Brendan Hennessy Bl, instructed by solicitor Eileen McCabe the boy and his family want to challenge the decision, and the lawfulness of the regulations.

They are also challenging the failure of the HSE to set out in detail what exceptional circumstances are that would allow him obtain services in a different functional area to where he lives.

The decision, it is claimed, failed to take into account relevant facts in support of his claim. No adequate reasons were given for the refusal. The decision-making process was also flawed in law, it is claimed. The decision was irrational, and the boy has suffered prejudice, it is claimed.

In judicial review proceedings against the HSE the applicant seeks an order quashing the HSE’s refusal to allow the boy to avail of services outside his home area.

The applicant also seeks various declarations from the court including one compelling the the HSE to determine the boy’s applications for services outside of his functional area, and that the 2021 regulations are outside the powers of the 2005 Disability Act.

He further seeks declarations that the HSE must set out the criteria for exceptional circumstances when one applies for services outside their functional area, and that the HSE is failing to comply with the 2005 Act.

Permission to bring the challenge was granted on an ex-parte basis by Mr Justice Charles Meenan.

The matter will return before the High Court after the Easter recess.