THE HIGH COURT
[2025] IEHC 287
[2024 699 JR]
BETWEEN
C.D. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND J.D.)
APPLICANT
AND
THE HEALTH SERVICE EXECUTIVE AND THE MINISTER FOR EDUCATION
RESPONDENTS
AND
THE NATIONAL COUNCIL FOR SPECIAL EDUCATION
NOTICE PARTY
Judgment of Ms. Justice Bolger on the 15th day of May, 2025
1. This is an application on behalf of a now seven year old child with additional needs (hereinafter referred to as 'C') for an order of certiorari quashing the Assessment of Need Report of 15 April 2024 and for an order of mandamus requiring the HSE to complete C's Assessment of Need in accordance with the Disability Act 2005 (hereinafter referred to as 'the 2005 Act') and the Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007 (hereinafter referred to as 'the Regulations').
2. For the reasons set out below, I grant an order of certiorari quashing the impugned Assessment of Need and an order of mandamus directing the HSE to complete C's Assessment of Need in accordance with the Act and with the Regulations.
3. In this judgment I address the following:
a. The statutory obligations of an assessment officer.
b. Findings in CD1 and steps taken thereafter.
c. The availability of alternative remedies.
d. The Minister's application to strike out parts of the applicant's proceedings and affidavits.
e. What was done to complete the impugned Assessment of Need.
f. The ability of the assessment officer to assess education needs.
g. Regulation 15 of the Regulations.
h. Circular 25/2024.
a. The statutory requirements of an assessment
4. In CD v. HSE and ors [2024] IEHC 11 ( 'CD1'), the 2005 Act was described as:
"...an innovative, far reaching remedial Act which was, inter alia, 'intended to provide for an assessment of the health and education needs of persons with disabilities' (Dunne J., J.N. and T.M. v. J.H. [2023] IESC 9). The Act provides a statutory framework for the assessment of the health and education needs of a person with a disability".
In A.B. v. HSE [2023] IECA 275, the Court of Appeal held, at para. 108, that the proper approach of a s. 8(7) assessment and assessment report must be construed along with s. 8 in its entirety, having due regard to its function within Part 2, the purpose of the Act and its long title. The long title of the 2005 Act commences with the following:
"An Act to enable provision to be made for the assessment of health and education needs occasioned to persons with disabilities by their disabilities, to enable ministers of the government to make provision, consistent with the resources available to them and their obligations in relation to their allocation, for services to meet those needs". (my emphasis)
Thus, the central purpose of the Act is to ensure that the health and education needs occasioned to persons who have disabilities are assessed and services to meet those needs are identified.
5. The concept of "assessment" is central to the Act and is given a specific statutory meaning at section 7:
"'assessment' means an assessment undertaken or arranged by the Executive to determine, in respect of a person with a disability, the health and education needs (if any) occasioned by the disability and the health services or education services (if any) required to meet those needs".
That definition informs the scope of s. 8, which is the main focus of these proceedings and merits being set out in full:
"8.—(1) The Executive shall authorise such and so many of its employees as it considers appropriate (referred to in this Act as "assessment officers") to perform the functions conferred on assessment officers by this Part and every person so appointed shall hold office as an assessment officer for such period as the Executive may determine.
(2) An assessment officer shall carry out assessments of applicants or arrange for their carrying out by other employees of the Executive or by other persons with appropriate experience.
(3) 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.
(4) An assessment officer shall be independent in the performance of his or her functions.
(5) An assessment under this section shall be carried out without regard to the cost of, or the capacity to provide, any service identified in the assessment as being appropriate to meet the needs of the applicant concerned.
(6) Where an assessment officer carries out or arranges for the carrying out of an assessment under this Part, he or she shall prepare a report in writing of the results of the assessment and shall furnish a copy of the report to the applicant, the Executive, and, if appropriate, a person referred to in section 9(2) and the chief executive officer of the Council.
(7) 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) whether the applicant has a disability,
(b) in case the determination is that the applicant has a disability—
(i) a statement of the nature and extent of the disability,
(ii) a statement of the health and education needs (if any) occasioned to the person by the disability,
(iii) a statement of the services considered appropriate by the person or persons referred to in subsection (2) to meet the needs of the applicant and the period of time ideally required by the person or persons for the provision of those services and the order of such provision,
(iv) a statement of the period within which a review of the assessment should be carried out.
(8) (a) An assessment officer may, for the purposes of carrying out an assessment of an applicant under this section, invite the applicant and, if appropriate, a person referred to in section 9(2) to meet with him or her for interview and furnish any documents or things relevant to the assessment in the possession of the applicant or person aforesaid that he or she may reasonably request and the applicant shall comply with the request.
(b) Where an applicant attends before an assessment officer pursuant to a request made to him or her under paragraph (a), the officer shall inform him or her of the purpose of the interview unless in his or her opinion the provision of such information might be prejudicial to the applicant's mental health, well-being or emotional condition or inappropriate having regard to the age of the applicant or the nature of his or her disability.
(c) An assessment officer shall—
(i) endeavour to ensure that the person or persons carrying out an assessment communicate with the applicant in a manner which facilitates appropriate participation by him or her in the assessment and promotes dialogue about the nature of the assessment and that note is taken of the views (if any) of the applicant concerning his or her needs or preferences in relation to the provision of services to meet his or her needs, and
(ii) ensure that the applicant is given adequate information relating to the process of the assessment and the results of the assessment unless in his or her opinion the provision of such information might be prejudicial to the applicant's mental health, well-being or emotional condition or inappropriate having regard to the age of the applicant or the nature of his or her disability.
(9) Where an assessment officer carries out or arranges for the carrying out of an assessment on a child and the assessment identifies the need for the provision of an education service to the child, he or she shall, in case the child is enrolled in a school, refer the matter to the principal of that school for the purposes of an assessment under section 3 of the Act of 2004 and, in any other case, refer the matter to the Council for the purposes of an assessment under section 4 of the Act of 2004."
6. The statutory role of the assessment officer is scoped out further by the Regulations, and in particular, Regulations 13 to 16 which provide as follows:
"13. In authorising an employee to be an assessment officer the Executive shall
have regard to the requirements of the role of the Assessment Officer, as provided
for by section 8 of the Act of 2005 and shall also have regard to the need
for such persons to have
(a) A thorough understanding of the provisions of the Act of 2005, the
Act of 2004 and a familiarity with the provisions of the Mental Health
Act 2001, the Health Act 2004 and the Health Act 2007;
(b) An excellent knowledge and understanding of disability and service
issues;
(c) strong organisational and interpersonal skills;
(d) an ability to work with multi-disciplinary teams;
(e) good report writing skills.
14. The Executive shall ensure that all staff engaged in the Assessment of
Need process will be competent and knowledgeable in conducting or coordinating a high quality assessment of need and that they shall hold the appropriate
qualifications and shall be up to date with developments in their area of
disability and assessment.
15. The Executive shall ensure that a standardised approach is taken with
regard to the training of assessment officers (or those carrying out an assessment
on their behalf), particularly in relation to the interpretation of legal definitions
in the Act of 2005. The Executive shall review the requisite skills and competencies
from time to time, as appropriate.
16. The Executive shall ensure that the assessments are carried out in accordance
with the standards for the assessment as determined and approved by the Health Information and Quality Authority."
7. Section 8(2) provides for an assessment to be carried out by an assessment officer but also allows an assessment to be done by other employees or by other persons with appropriate experience which is arranged by the assessment officer. The process may also include other reports which are to be considered in the light of the assessment officer's own assessment. This was expressly recognised by the Court of Appeal in A.B. v. HSE where the Court stated at para. 83:
"In the discharge of his or her functions under s. 8 in respect of the process leading to the preparation of an independent AON, the Assessment Officer is entitled to consider and adopt or reject in whole or in part a privately commissioned report as they consider appropriate in light of their own assessment of the applicant in question." (my emphasis)
8. The statutory role of a person nominated by the NCSE pursuant to s. 8(3) "to assist in the carrying out of an assessment" is very different to that of a person carrying out an assessment under section 8(2). Section 8(3) involves a person with appropriate expertise assisting the carrying out of the assessment whereas s. 8(2) involves the actual assessment of the applicant by the assessment officer, another HSE employee or another person with appropriate experience. A person who is qualified for a s. 8(3) nomination is not necessarily also qualified to carry out a s. 8(2) assessment, although they may be. This is clear from the following differences between those two tasks assigned by the legislature:
i. A person who is providing assistance pursuant to s. 8(3) must have appropriate expertise whereas the person carrying out an assessment pursuant to s. 8(2) must have appropriate experience.
ii. A s. 8(2) assessment could be carried out by more than one person, as confirmed by s. 8(7)(b)(iii) which refers to "persons", whereas s. 8(3) provides for the nomination of a single person only.
iii. The statutory definition of assessment set out in s. 7 requires that a s. 8(2) assessor in carrying out the assessment determines the health and education needs of a disabled person occasioned by their disability and the health or education services required to meet those needs.
iv. Section 8(2) does not impose an obligation on the assessment officer to arrange with another HSE employee or another appropriately experienced person to carry out an assessment. It is an alternative option that that the subsection affords to the assessment officer instead of, or possibly in addition to, carrying out the assessments themselves.
v. A person can only be nominated to assist with a s. 8(3) assessment where an assessment officer is of the opinion that there may be a need for an education service to be provided to an applicant.
vi. Section 8(3) requires the assessment officer to request the NCSE to nominate a person to assist, where the assessment officer is of the opinion that there may be a need for an education service to be provided to an applicant and requires the NCSE to comply with that request. It does not impose an obligation on the nominated person to provide the assistance that has been sought.
vii. The input of a person whom the assessment officer has arranged to carry out a s. 8(2) assessment may continue throughout the s. 8 process even after the assessment has been carried out. Section 8 subss. 6, 7(b)(iii), 8(c)(ii) and 9 involves such persons in meeting with an applicant, communications with an applicant, or subsequent contact with the NCSE or an applicant's school principal. By contrast, the involvement of a person providing assistance pursuant to s. 8(3) is more limited and finite as their involvement in the s. 8 process comes to an end once they have provided such assistance as they consider appropriate.
9. The ongoing role and responsibilities of a s. 8(2) person carrying out an assessment over and above those of a s. 8(3) nominee assisting in the carrying out of the assessment are significant. For example, s. 8(6) requires a s. 8(2) person to prepare a written report "of the results of the assessment". That means that the written report must be of the results of the s. 8(2) person's assessment. The possibility of the assessment officer having another person or more than one other person carrying out an assessment is recognised by s. 8(7)(b)(iii) in that both "the person or persons referred to in subsection 2" are identified as sources of a statement of the services considered appropriate to meet the applicant's needs. However, regardless of how many "persons" the assessment officer engages with in arranging for an assessment to be carried out, s. 8(6) makes it clear that the assessment officer retains sole responsibility for preparing the written report of the results of the assessment. Even more significant are the responsibilities that s. 8(7) imposes on the assessment officer, and no one else, to set out their findings on their determinations in relation to specified matters including a statement of any health and education needs occasioned to the applicant by their disability, and the services considered appropriate by the assessment officer and anyone else they arranged to carry out the assessment, to meet the applicant's needs.
10. The assessment officer is the only person mandated by s. 8(8)(a) to meet with the applicant or their specified person and request documents in the applicant's possession relevant to the assessment. That subsection refers to the exercise of that power "for the purposes of carrying out an assessment of an applicant under this section". That lends further support to the conclusion that responsibility for the conduct of the assessment remains with the assessment officer alone, even where they arranged for other HSE employees or other experienced persons to carry out assessments pursuant to section 8(2). Similar responsibilities for ensuring appropriate communication with the applicant and the provision of information to them remains with the assessment officer alone (s. 8(8)(c)), as does the responsibility for any reference of matters to a child's school principal or the NCSE pursuant to subsection 9.
11. The distinction between the s. 8(2) person and the s. 8(3) person could be summarised as a s. 8(3) person assists with an assessment whereas a s. 8(2) person carries out the assessment. The task of the former inputs to the task of the latter but providing assistance with an assessment does not transform or evolve into carrying out an assessment unless the s. 8(3) assistant is also properly tasked with carrying out the s. 8(2) assessment in accordance with the relevant statutory provisions. This point was made previously in the judgment of this Court in CD1 at para. 32(ii) relating to a 2022 Information Note prepared by the NCSE which claimed, wrongly, that the NCSE had the responsibility to nominate an appropriate person to "carry out" an assessment of education needs on behalf of the HSE. The Court found that the NCSE's statutory responsibility under s. 8(3) was not to nominate a person to "carry out" an assessment of education needs on behalf of the HSE but to "assist in the carrying out of the assessment under this section in relation to the applicant" (emphasis added).
12. An assessment officer has limited ability to delegate their statutory responsibilities to any other person. The assessment officer can arrange for a HSE employee or another experienced person to carry out an assessment and can procure assistance from a person nominated by the NCSE pursuant to s. 8(3), but that does not limit, remove or transfer the responsibilities imposed on the assessment officer by s. 8, in particular, s. 8(6) and s. 8(7) to conduct the assessment and set out their findings and determinations in a written report. That written report will arise (at least in part) from the assessment of education needs under s. 8(3) (as per Donnelly J. in C.M. v. HSE at para. 75 where she stated:
"The overall wording of the two relevant sub-sections is quite different and there must be a reason for that. Section 8(3) mandates an assessment officer who is of the opinion that there may be a need for an education service to request assistance from the Council. Section 8(9) specifically states that "[w]here an assessment officer carries out or arranges for the carrying out of an assessment on a child and the assessment identifies the need for the provision of an education service to the child....". The positioning of the reference to "carries out or arranges for the carrying out" prior to the reference to the "assessment identify[ing] (sic) the need", signifies that an assessment has already occurred with respect to the child's educational needs. Therefore, s. 8(9) refers to the assessment already having been made and which has been reduced to writing in accordance with s. 8(6) and s. 8(7) as a result of the assessment of educational needs under s. 8(3)."
13. I find support for this analysis of responsibilities for the assessment resting with the assessment officer in the decision of the Court of Appeal in A.B. v. HSE , where the Court stated at para. 121:
"An Assessment Officer must be accorded a margin of appreciation in the discharge of his or her functions under s.8 where the professional judgement comes into play. However, the assessment contemplated is generally evidence-based and it is necessary and appropriate that the Assessment Officer has all appropriate evidence to enable them (my emphasis) to make a valid independent assessment and complete an assessment Report. The Report must in each case competently identify "the nature and extent" of any disability found to exist. If the ascertainment of either the nature and extent of the disability are not within the assessor's field of competence, whatever diagnostic tools or processes are considered appropriate must be deployed for the purposes of discharging the statutory function in order to support the finding of an impairment of a kind that falls within the definition of disability in s. 2(1) as modified by s. 7(2). "
14. In summary, the assessment officer is responsible for carrying out an Assessment of Need, including of education needs, and for preparing a written report of their findings and determinations. A person nominated by the NCSE pursuant to s. 8(3) may be asked to assist with the task of carrying out the assessment but cannot be expected or required to carry out an assessment in the place of the assessment officer, unless that is properly arranged pursuant to section 8(2).
b. Findings made in CD1 and steps taken thereafter
15. The background to this case lies in the decision of this Court in CD1, an earlier case taken by the same applicant against the same respondents about the s. 8(3) process whereby the NCSE nominates a person to assist an assessment officer with the carrying out of an Assessment of Need. The particular process followed by the NCSE in CD1 of transcribing information contained in the school's own files without having been advised of the resource blind approach to identifying services that was required by s. 8(5) of the Act, was criticised by the Court. The basis for the decision is summarised at paras. 40 and 41 as follows:
"40. It is clear from both assessment of needs reports that the assessment officers transcribed what the schools had furnished in their assessment of education needs reports, to which they added some references to external reports and in relation to C, referred to the possibility of a trial with alternative communication devices. The assessment officer should treat the assistance of the person nominated pursuant to s. 8(3) with respect but it is not an expert opinion which the assessment officer can or should simply transcribe. It is assistance for the assessment officer to carry out the assessment, the results of which are to be set out in a report that must include the assessment officer's findings and determinations of the matters set out at s. 8(7). That requires more of the assessment officer than simply transcribing the school's assessment of education needs report which in turn has been transcribed from the school's own files and completed in a prescribed, short period of time without the school having been advised of the full nature of the statutory process with which they are assisting.
41.Once the assessment officer decides to invoke s. 8(3), the NCSE must nominate a person with appropriate expertise (who can be a qualified teacher) to assist in the carrying out of the assessment of the child's education needs without regard to 'the cost of, or the capacity to provide, any service identified in the assessment as being appropriate to meet the needs of the applicant concerned'. That assessment of the child's education needs can then be used by the assessment officer in carrying out an assessment of needs and in setting out their findings and determinations of the matters set out at s. 8(7). This has not yet happened in relation to these applicants."
29. The Assessments of Needs was quashed and the HSE were compelled to prepare a new Assessment of Needs in accordance with the Act. In the aftermath of CD1, the NCSE and the HSE liaised with one another to develop a new s. 8(3) process and the Minister introduced Circular 25/2024. In purported compliance with s. 8(3) and the Circular, C's earlier Assessment of Need that was quashed by the Court in CD1 was amended and a new Assessment of Need was issued, which included a Report of Education Needs from the NCSE which transcribed a Report of Education Needs completed by C's principal who was nominated by the NCSE pursuant to section 8(3). That Assessment of Need is now challenged in the within proceedings. Under the heading "Educational needs have been identified as follows" the Assessment of Need referred to 2022 reports from C's psychologist, two speech and language therapists and an occupational therapist, and the education needs it said had been identified for C[1]. It then went on to what it calls "the second completed NCSE Report of Education Needs for the Purpose of Assessment of Need (Disability Act 2005)" of April 2024 which it said had identified the "following education needs" for C. What then follows is clearly transcribed from the NCSE Report of Education Needs. Whilst what is listed are described as education needs (as it was in the Report of Education Needs completed by C's principal) they are more akin to the challenges that C faces. Challenges are not necessarily the same as needs.
c. The availability of alternative remedies.
16. Judicial review generally should not be granted where there is an adequate alternative remedy. The 2005 Act provides for a statutory redress procedure for the enforcement of obligations by a Disability Complaints Officer and, on appeal, by a Disability Appeals Officer. This statutory process culminates in a Circuit Court order directing implementation of a determination or recommendation, from which there is an appeal to this Court on a point of law. Such a statutory appeal is the default position, and this Court should withhold judicial review relief where it represents an adequate remedy for an applicant.
17. The HSE claimed that the applicant could have brought a complaint pursuant to the statutory appeal provided for at s. 14 of the 2005 Act. Counsel for the HSE argued that the applicant's plea (made at para. 17 of the statement of grounds) that the Assessment of Need was incomplete could have been addressed by a complaint pursuant to s. 14(1)(b) i.e.:
"the fact, if it be the case, that the assessment under section 9 was not commenced within the time specified in section 9(5) or was not completed without undue delay".
18. The HSE also relied on s. 15(8)(b) which allows a complaints officer to make a recommendation "that the assessment be provided and completed within the period specified in the recommendation". The HSE also suggested that the applicant's concerns in relation to the compliance of the Assessment of Need with HIQA standards could have been addressed by the powers of the complaints officer pursuant to s. 15(8)(d) to recommend that the Executive "cause the assessment or a specified part of it to be carried out in conformity with those standards within the period specified in the recommendation". It is difficult to understand how this could have effectively addressed that aspect of the applicant's case in circumstances where the school principal who completed the NCSE's Report of Educational Needs and whom the HSE claimed was in fact completing a s. 8(2) assessment, said he has never been trained in those HIQA standards.
19. There are circumstances in which a statutory appeal remedy may be neither adequate nor appropriate. For example, in C.M. v. HSE [2020] IEHC 406 Barr J. exercised his discretion to grant judicial review in a similar case about rights arising under the 2005 Act that involved complex issues of statutory interpretation and a claim for damages. The latter does not arise in the within case but the former undoubtedly does. The applicant has raised issues concerning the correct interpretation of s. 8 of the 2005 Act, in particular ss. 8(2), 8(3) and 8(7), as well the implications those provisions have for the role and responsibilities of the assessment officer. The applicant has also challenged the legality of what the assessment officer did and how the s. 8(3) nomination process was applied. Donnelly J. in C.M. v. HSE [2021] IECA 283 said that when addressing issues arising from the 2005 Act, "[t]he question of statutory interpretation is a question of law correctly asked of the High Court" (at para. 57). C.T.M v. HSE [2022] IEHC 131 related to the vires of the assessment officer in discharging their statutory function, which Phelan J. describes as "a complaint which turns on the proper interpretation of the statutory requirements" (at para. 168). She found there was no remedy in s. 14 in respect of such a complaint.
20. This applicant has pleaded (at para. 20 of the statement of grounds) that the Assessment of Need was incomplete, was not done in accordance with s. 8(5) and 8(7) and failed to set out what was required by section 8(7). Those claims could not be addressed by the statutory power conferred on a complaints officer by s. 15(8)(b) to determine if an assessment was commenced or completed within the appropriate timeframe or to recommend that the assessment be completed.
21. I follow the dicta of Phelan J. in C.T.M, in particular, her finding (at para. 178) that the issue at the heart of the case:
"...could not have been properly determined within the parameters of a s. 14 complaint, nor on any consequential or derivative enforcement application to the Circuit Court because of the terms in which ss. 14, 15 and 22 are framed. The issue which arises for determination in these proceedings with regard to the requirements of Part 2 of the 2005 Act falls outside the "subject matter jurisdiction" of the complaints officer under section 14. The court under the statutory redress scheme also derives its jurisdiction in turn from within the parameters of the s.14 subject matter jurisdiction with the result that on any application deriving from the s. 14 application limited as to its subject matter jurisdiction by the terms of s. 14 itself. The subject matter jurisdiction under s. 14 is limited by the terms in which that provision has been drawn."
I also follow her dicta at para. 179 that if that is not so, that the Court would not exercise its discretion to disallow relief in judicial review "...notwithstanding the existence of an alternative remedy having regard to the state of confusion evident as to the status of the HIQA Standards". Whilst the evidence in the within case did not demonstrate a similar state of confusion as applied in C.T.M, the evidence made it clear that different views were taken by the HSE and the NCSE towards what had occurred when the NCSE was requested to nominate a person with appropriate expertise to assist in the carrying out of C's Assessment of Need, in an email to the NCSE that cited s. 8(3) of the 2005 Act. The NCSE viewed that as a request for assistance to be given to the assessment officer to carry out C's Assessment of Need. The HSE seem to have viewed it differently, as it pleaded at para. 3(b) of its grounds of opposition that the assessment officer "had the benefit, as a result of the NCSE's assistance, of an assessment carried out of the minor Applicant's education needs and services considered appropriate by the assessor to meet those needs ("Education Needs and Appropriate Services"), as provided for by s. 8(2)". This was despite the fact that:
i) The assessment officer never averred to having appointed the principal who arranged for the carrying out of an assessment by another person;
ii) The assessment officer did not have contact with the principal (Transcript Day 3, page 153);
iii) There was nothing in the evidence before the Court that the principal was appointed to carry out a s. 8(2) assessment;
iv) The principal did not know he was being asked to do a s. 8(2) assessment, (Transcript Day 3, pages 173 to 174);
v) The principal's assessment was engaged via s. 8(3) (Transcript Day 3, page 174);
vi) When the Court asked how did the HSE ensure that the principal's assessment was carried out in accordance with HIQA standards, counsel for the HSE said that was "not apparent" from any of the evidence before the Court (Transcript Day 3, page 178).
22. I am, therefore, not satisfied the alternative remedy provided by s. 14 of the 2005 Act is a suitable alternative for this applicant. If I am wrong on that then I exercise my discretion not to refuse judicial review relief notwithstanding the existence of a suitable alternative remedy because of the differing approaches taken by the HSE and the NCSE to the central issue of the status of the report prepared by the principal (i.e., whether it was a s. 8(2) assessment or s. 8(3) assistance) and the confusion that this caused.
d. The application of the Minister to strike out part of the applicant's case
23. The Minister seeks to dismiss the applicant's claim insofar as it relates to the question of a professionally qualified teacher having the appropriate expertise to be nominated by the NCSE pursuant to section 8(3). Reliance was placed on the Court's finding in the decision of CD1 that a qualified teacher was suitable to be nominated by the NCSE pursuant to s. 8(3), a finding that was not appealed by the applicant. The applicant did not press the point before this Court but said they wished to preserve it in the event of an appeal.
24. In CD1, the applicant was granted certiorari and mandamus. The Minister contended that the applicant could have appealed the Court's finding that a teacher was not qualified to be nominated under section 8(3). I note that finding did not prevent the Court from granting the central relief sought, i.e. an order of certiorari quashing the Assessment of Need. The Minister relied on the decision of this Court in Right To Know v. An Taoiseach [2021] IEHC 233 which held that the general rule of res judicata /issue estoppel precludes parties from relitigating an issue of fact or law which has been previously determined against them. Simons J. held "[t]he determination of that issue must have been necessary to the outcome of the earlier proceedings, i.e. the finding on the issue must have been fundamental rather than merely collateral or incidental" (at para. 32). He went on to say at para. 33:
"Put otherwise, notwithstanding that the judgment in earlier proceedings may not have entailed a final determination on the legal right asserted in subsequent proceedings, it may nevertheless have determined an issue which is common to both sets of proceedings. Provided that the determination of this issue had been an essential part of the rationale for the earlier judgment, then the finding on the issue will, generally, be binding in the subsequent proceedings."
In Right to Know, the correct characterisation of records of government meetings had been one of the main disputed issues in the earlier litigation and directly led to the outcome of those earlier proceedings. I do not think the issue here of whether a teacher is an appropriate person to be nominated under s. 8(3) was similarly central to the decision in CD1. Ultimately, it was a point that did not dictate the outcome of the proceedings, i.e. the quashing of the assessment officer's report that was completed with the assistance of a s. 8(3) nominee, whom the applicant had claimed was not a person with appropriate expertise, and whom the Court found was such a person.
25. The Minister also sought to strike out all or some of three of the applicant's affidavits, that of psychologist Dr. Mary Nugent, a teacher who had no direct involvement with C and C's principal who had been nominated by the NCSE and who completed a Report of Education Needs with the assistance of C's class teacher. The Minister asserted that the averments therein took issue with the expertise of a teacher to be nominated by the NCSE to assist with an Assessment of Need. Those affidavits were filed after the applicant commenced the proceedings, in order to respond to the case made by the HSE in its statement of opposition vis-a-vis what the HSE claimed was a s. 8(2) assessment by the principal. The concerns the principal raised in his affidavit, on which I have relied in making my decision, related inter alia to his understanding that he was being asked to assist as per s. 8(3) and that he did not know the document he completed would amount to, or be treated as, the assessment of C's education needs. The averments impugned by the Minister arose from the HSE's pleaded case that the principal was not only a s. 8(3) assistant but was also a s. 8(2) assessor. That case was made for the first time in the HSE's statement of opposition. The applicant was previously unaware of the HSE having viewed the principal's report as a s. 8(2) assessment, as is clear from para. 21 of the statement of grounds which said:
"It has not been contended that a teacher in a recognised school could have the function of carrying out an assessment under s.8(2) and in any event such would be inconsistent with Regulations made by the Minister in 2007."
26. The applicant's solicitor had written detailed correspondence to the HSE prior to instituting the within proceedings, which focussed on the principal's report as a s. 8(3) assistance and not as a s. 8(2) assessment. This correspondence elicited no response from the HSE before the proceedings were issued.
27. In summary, the Court's findings in CD1, vis-a-vis the NCSE's entitlement to nominate a teacher pursuant to s. 8(3), was not central to the relief granted to the applicant in those proceedings. Therefore, issue estoppel that might require aspects of a pleaded case to be struck out does not arise, particularly where the statement of grounds itself acknowledged the findings previously made. The impugned affidavits were filed in response to a case pleaded by the HSE that was not apparent to the applicant (or it would seem to the Minister or the NCSE) when the proceedings were instituted.
28. I refuse the application to dismiss any aspect of the proceedings or to strike out any aspect of the affidavits filed on behalf of the applicant.
e. What was done to complete the impugned Assessment of Need
29. The assessment officer assigned to C's application swore an affidavit in which she sets out what was done to conduct C's Assessment of Need. She explained that C's previous Assessment of Need was completed on 28 March 2021 by her colleague and was quashed on 21 June 2022. A new Assessment of Need was then prepared by another colleague on 3 September 2022 and was quashed by this Court in CD1. The impugned Assessment of Need commenced when the disability network manager emailed the NCSE on 29 January 2024 requesting it to nominate a person with appropriate expertise to assist in the carrying out of C's assessment. That email set out the provisions of s. 8(3) verbatim and requested the nomination of a person to assist.
30. The following points arise from that evidence:
(i) C's assessment officer averred that C's former assessment officer made the referral to the NCSE and that this was followed up on by another colleague. Section 8(3) requires the request to the NCSE to be made by the assessment officer where they are of the opinion that there may be a need for an education service. Whilst it is pleaded in the HSE's statement of opposition that the assessment officer requested the NCSE to nominate a person having formed the opinion that there may be a need for an education service to be provided to the applicant, C's assessment officer (or anyone else on their behalf or on behalf of the HSE) did not aver to having formed any such opinion Neither did any of the HSE's deponents aver that C's previous assessment officer, who made the original referral to the NCSE, had formed that opinion.
(ii) The HSE manager's email to the NCSE was exhibited by C's assessment officer. It cited s. 8(3) and made no mention of s. 8(2) or of an assessment or any request for an assessment. Neither did it refer to a person with appropriate experience, which is the qualification required by s. 8(2) of a person whom an assessment officer arranges to carry out an assessment.
(iii) That email could not be interpreted as a request for a person to carry out an assessment as per s. 8(2) or the assessment officer arranging for an assessment of C to be carried out by a person with appropriate experience.
31. C's principal, who completed the report with the assistance of C's class teacher, said he could not complete a report akin to those prepared by educational psychologists who use standardised testing to conduct their analyses. He said he received no guidance on the types of services that would be available to a child such as C in a resource blind situation. The Inspectorate of the Department of Education and NEPS (the National Education Psychological Service) did provide support and guidance to the principal and class teacher but from the affidavit of the Divisional Inspector of the Department of Education, it seems that that support and guidance was about filling in the form and explaining that the teacher was not limited to information from the student's support file and that they could recommend services in addition to those available in their school. Whilst the Circular does set out a list of possible services, it would appear from the principal's affidavit that he could have benefitted from more information about resource blind services specifically catering for the needs of a child such as C. Dr. Mary Nugent said:
"In [C's] case there is simply no standardised testing used to support the Report of Educational Needs at all and this makes it extremely difficult to quantify the extent of his current needs."
32. The assessment officer averred at para. 10 of their affidavit:
"My understanding of what would result from the referral to the NCSE was a report carried out by one or more persons nominated by the NCSE detailing the minor Applicant's education needs and the education services that he required. I was aware that a new circular had been introduced dealing with the NCSE's role in the Assessment of Need process, and that the NCSE and/of (sic) the person(s) nominated by it would produce the aforesaid report by reference to the provisions of this circular. I understood that the person(s) carrying out this assessment would have the appropriate expertise to assess the minor Applicant's education needs and the education services that he would require. I further understood, based on my experience, that it was reasonably likely that the person(s) nominated would be a teacher/principal from the minor Applicant's school."
The assessment officer never referred to "assistance" or anything similar, when they set out what they understood would follow from the request made by the NCSE pursuant to s. 8(3), despite the clear reference to "assist" in the statutory provision.
33. The assessment officer's stated understanding of what would result from the referral was inconsistent with the statutory provisions and misunderstood the assessment officer's statutory duties. This misunderstanding is demonstrated again in the assessment officer's later averment at para. 12:
"I do not understand that I was obliged by the Disability Act to personally assess the education needs or education services required by the minor Applicant (nor, for the avoidance of doubt, do I understand that I have the requisite skills, experience or expertise to do so). Rather, I understand that my obligation as an Assessment Officer is to record in the Assessment of Needs Report the results of assessments which I had carried out or had arranged to be carried out. In that context, I understand that there is nothing improper in me reproducing reporting furnished to me by the NCSE."
34. The following arises from that evidence:
(i) The assessment officer misunderstood their duty pursuant to s. 8(2) to carry out the assessment as defined in s. 7 of the Act and to make findings and a determination pursuant to section 8(7).
(ii) The skills, experience and expertise of the assessment officer does not determine whether s. 8 has been complied with. I return to that at para. 41 below.
(iii) The assessment officer says her obligation was to "record" results of assessments they had carried out or arranged to be carried out. Section 8 does not mention 'record'. Section 8(7) imposes a far more proactive obligation of requiring the assessment officer to set out their findings and determination on specified matters, including a statement of the education needs occasioned to the person by their disability. There is no provision in the section allowing an assessment officer to delegate that duty to anyone else. For an assessment officer to set out their findings and determinations requires them to make findings and determinations. The assessment officer can set out statements of the assessments that they arranged to be carried out as per section 8(2). Section 8(7)(b)(iii) makes express provision for the Assessment of Need report to make a determination in relation to a statement of the services to be considered appropriate by s. 8(2) assessors. Recording assessments or transcribing the NCSE report is not sufficient to comply with the assessment officer's s. 8 obligations.
(iv) A s. 8(3) request is for assistance. Therefore, the resulting report is to assist an assessment rather than to do the assessment. It is trite to point out that assisting in the carrying out of an assessment is entirely different to carrying out an assessment.
35. C's assessment officer's stated understanding of their role is flawed and does not properly reflect their s. 8 obligations. The assessment officer is permitted to arrange for assessments to be carried out by other HSE employees or other persons with appropriate experience (as per s. 8(2)) but that does not absolve the assessment officer from their responsibility pursuant to s. 8(7) to make findings and determinations and to set them out in the Assessment of Need. That responsibility remains with the assessment officer, even where they have arranged for other persons to carry out assessments of applicants. That statutory responsibility cannot be discharged by the assessment officer simply recording results of a s. 8(2) assessment and/or reproducing an NCSE report.
36. Rather than treating the report as the s. 8(3) assistance that was sought and the assistance that C's school principal believed they were providing, the assessment officer seems to have transcribed the NCSE report as their assessment of C's education needs. That falls well short of what s. 8 requires of an assessment officer in conducting an assessment and preparing the Assessment of Need. The fact that C's assessment officer had regard to other sources in purporting to compile C's education needs, does not alleviate the shortcomings in their treatment of the NCSE report.
37. In CD1 the practice of transcribing the school's assessment of education needs report was heavily criticised by this Court at para. 40 of the decision:
"It is clear from both assessment of needs reports that the assessment officers transcribed what the schools had furnished in their assessment of education needs reports, to which they added some references to external reports and in relation to C, referred to the possibility of a trial with alternative communication devices. The assessment officer should treat the assistance of the person nominated pursuant to s. 8(3) with respect but it is not an expert opinion which the assessment officer can or should simply transcribe. It is assistance for the assessment officer to carry out the assessment, the results of which are to be set out in a report that must include the assessment officer's findings and determinations of the matters set out at s. 8(7). That requires more of the assessment officer than simply transcribing the school's assessment of education needs report which in turn has been transcribed from the school's own files and completed in a prescribed, short period of time without the school having been advised of the full nature of the statutory process with which they are assisting."
It seems that the HSE has replicated those same errors in their management of C's subsequent Assessment of Need that is now impugned before this Court, that were made by the NCSE in 2022 and which were criticised by the Court in its judgment in CD1.
38. The assessment officer is tasked with carrying out assessments, the definition of which require, inter alia, a determination of education needs occasioned by the disability. At no time was the NCSE or the principal advised of the need to determine any education needs occasioned by C's disability. Part 6 of the impugned Assessment of Needs sets out what seems to be a generic title of 'Health and education needs occasioned to the person by the disability'. There is no other reference to C's education needs occasioned to him by his disability or to any determination by the assessment officer of C's education needs occasioned to him by his disability, even though responsibility for determining that is imposed on the assessment officer by section 8(7)(b)(iii).
39. In the absence of an assessment in accordance with s. 8 by the assessment officer of C's education needs, the assessment officer could not assess the education services required to meet those needs (as per the definition of assessment at s. 7). Thus, what is required by the 2005 Act, going to the heart of the purpose of the legislation as set out in its long title (referred to at para. 4 above) simply did not occur. Not only does this fall short of what the applicant is entitled to pursuant to the 2005 Act, but it also has a real and tangible impact for C's care and progress and for his parents' ability to provide what they can for him. C's father explained in his second affidavit at para. 10:
"I am concerned that the 'NCSE' document completed by the School (with no input from the NCSE or the Assessment Officer) is extremely limited in terms of its utility. When I read the contents, the thing that struck me was that there was nothing new in the report. My wife and I could have written that report in 15 minutes. It is akin to a report card from a teacher that one might receive at the end of term setting out a child's challenges to be worked on. What I had hoped we would receive , after two successful Judicial Reviews, was a gold standard, comprehensive report that set out the nature and extent of Ciaran's educational needs and, more importantly, what the ideal services are that would ameliorate those needs. The identification of those services is extremely important to use as a family because it would allow us to save, plan and source these services for Ciaran."
40. The shortcomings in the approach that was taken to the assessment of C's education needs renders the impugned assessment deficient. The Court of Appeal in A.B. v. HSE held that where the assessment itself is deficient, the assessment report must, inevitably, be inadequate since the author of such a report is not in a position to outline the nature or the extent of the disability identified, which undermines the assessment officer in providing a statutorily compliant report. The Assessment of Need in that case was found to be invalid as it failed to identify the nature and extent of the disability. The then diagnostic methodology of a Standard Operating Procedure (that was subsequently condemned by this Court) purported to "impermissibly vary the statutory scheme". The Court concluded at para. 121:
"[I]t is necessary and appropriate that the Assessment Officer has all appropriate evidence to enable them to make a valid independent assessment and complete an assessment Report".
In the within case, it is clear that the assessment officer did not have all of the evidence to enable them to make a valid assessment and to complete an adequate assessment report in accordance with s. 8, to which C and his parents were entitled.
f. The assessment officer's ability to assess education needs
41. The assessment officer averred, at para. 12 of her affidavit, that she did not have "the requisite skills, experience and expertise" to "personally assess the education needs or education services required by the minor Applicant." The assessment officer's lack of skills is also referred to by Bernard O'Regan, Assistant National Director of Disability Services, who stated at paras. 6 and 8:
"6. The HSE's position is that Assessment Officers do not have, and are not required to have, the skills, experience or expertise to independently carry out an assessment of an applicant's educational needs.
...
8. As a matter of fact, I say and believe that Assessment Officers employed by the HSE do not ordinarily have the skills, experience or expertise to independently assess the educational needs of an applicant.".
42. Those averments as to the assessment officer's lack of skills to assess an applicant's education needs, does not sit comfortably with Regulation 14, set out above at paragraph 6. Neither does the assertion that an assessment officer is not required to independently assess an applicant's education needs, sit comfortably with s. 8 or the definition of "assessment" in section 7. Insofar as Mr. O'Regan referred to the concept of an independent assessment, an assessment officer may rely on assessments carried out by multidisciplinary teams which may well come within s. 8(2), as long as the person appointed understood that they were carrying out an assessment and understood how the 2005 Act defined 'assessment' and therefore understood what was required of them. In A.B. v. HSE the Court of Appeal recognised the potential input of a privately commissioned report in stating at para. 83:
"In the discharge of his or her functions under s. 8 in respect of the process leading to the preparation of an independent AON, the Assessment Officer is entitled to consider and adopt or reject in whole or in part a privately commissioned report as they consider appropriate in light of their own assessment of the applicant in question."
The Court also held at para. 121:
"If the ascertainment of either the nature and extent of the disability are not within the assessor's field of competence, whatever diagnostic tools or processes are considered appropriate must be deployed for the purposes of discharging the statutory function in order to support the finding of an impairment of a kind that falls within the definition of disability in s. 2(1) as modified by s. 7(2)."
43. The assessment officer's statutory obligations cannot be avoided, either by the assessment officer or the HSE. If the assessment officers are not qualified to discharge their statutory obligations, that will have to be addressed, as statutory obligations, and ensuring rights for the persons to whom those obligations are owed, must be vindicated. The statutory requirements of the Act must be followed and, as with any statutory requirements, the Court must ensure they are enforced:
"It becomes the duty of the judicial branch to see that it is appropriately enforced in accordance with ordinary democratic norms and general rule of law principles" (as per Hogan J. on behalf of the Supreme Court in the matter of M. McD a child v. The Child and Family Agency and Ors [2024] IESC 6 at para. 120.)
The entitlement of children with disabilities and their parents to an assessment of their education needs in accordance with s. 8 requires that an assessment officer discharges their obligations pursuant to s. 8(7) to make findings and determinations about those education needs.
g. Regulation 15
44. Regulation 15, set out above at para. 16, requires the HSE to ensure that an assessment officer or a person carrying out an assessment pursuant to s. 8(2) is trained in the interpretation of legal definitions in the 2005 Act, which includes the definition of "assessment" in section 7. C's principal averred that he never received any such training. Regulation 15 does not require training for the fulfilment of the assisting role pursuant to section 8(3). The principal is not a person whom the assessment officer had arranged to carry out an assessment pursuant to s. 8(2) and clearly did not come within the regulations applicable to such a person or was ever within the cohort of persons whose training, skills and competence, including the interpretation of legal definitions under the 2005 Act, had to be reviewed.
45. There is neither an evidential nor a legal basis for the HSE's plea at para. 3(b) of its statement of opposition that the assessment officer:
"had the benefit, as a result of the NCSE's assistance, of an assessment carried out of the minor Applicant's education needs and the services considered appropriate by the assessor to meet those needs ("Education Needs and Appropriate Services"), as provided for by s.8(2)."
Or at para. 4:
"The assessment officer was entitled to, and did, arrange for the carrying out of the
assessment of the Applicant's Education Needs and Appropriate Services by another
person with appropriate experience, and to incorporate the reporting deriving from that assessment into the assessment report.".
46. That is not to say that a person nominated pursuant to s. 8(3) to provide assistance could not also be a person whom an assessment officer had legitimately arranged to carry out an assessment pursuant to s. 8(2) (although for the avoidance of doubt, I make no such finding that this happened here, given the evidence before the Court). Any lawful invoking of s. 8(2) would require more than a bare s. 8(3) request for assistance as was made here. It is a matter for an assessment officer to determine who they might arrange to carry out an assessment pursuant to s. 8(2), but at a minimum, they would have to make those arrangements in accordance with the requirements of the Regulations and could not simply rely on the NCSE nomination, pursuant to s. 8(3), of a person with appropriate expertise to assist in carrying out an assessment. Even if the same person provided both assistance and an assessment (which would presumably require them to understand that that was what they were doing), the assessment officer would still have to comply with their obligations in relation to making their findings and determinations in the Assessment of Need.
47. It is not for this Court to direct the NCSE on what information, guidance or support should be given to a s. 8(3) nominee. However, the availability of such material might be relevant to the ability of a teacher to provide the assistance requested of them pursuant to s. 8(3) and the legitimacy of any decision they might make to decline to provide some or all of what has been requested of them. The NCSE submitted that the point did not arise here as C's principal agreed to the nomination, but this was clearly in circumstances where he believed he was required to do so, as was set out in the Circular. The statutory powers on which the Minister seeks to rely do not require a teacher to complete a Report of Education Needs. I discuss the Circular's purported imposition of such a requirement below at paragraph 52.
h. Circular 25/2024
48. The Minister for Education issued Circular (0025/2024) which did the following:
· Set out the import of s. 8, including the HSE's responsibility for the Assessment of Need process within which an assessment officer determines the health and education needs of an applicant.
· Summarised s. 8(3) and referred to the NCSE's statutory obligation to nominate an appropriate person to assist the HSE in the Assessment of Need process.
· Stated that the Department of Education is satisfied that a teacher is suitably qualified to provide that assistance.
· Stated that schools are required to complete a Report of Education Needs to meet a school's requirement to identify and provide for special education needs and to cooperate with the NCSE in the performance of its function.
· Stated that teachers' recommendations in relation to education services need not be restricted to services available in their school.
· Referred to the gold standard assessment as per s. 8(5) of the Act.
· Stated that the assessment officer is required to make a professional judgment based on all information available to them including from the teacher, which informs the Assessment of Need process.
· Emphasised the role of the teacher as assisting in the carrying out of an assessment of education needs.
49. The involvement of the Minister for Education in the s. 8(2) process is acceptable for the reason set out in the decision of this Court in CD1 at para. 30, namely, given the role the Oireachtas gave to the NCSE in s. 8(2) and the fact that the NCSE is a body that itself comes under that Minister.
50. The Circular makes it clear that the purpose of the Report of Education Needs is to assist the Assessment of Need process and that teachers are suitably qualified to provide that assistance. Both are correct. However, the Circular goes on to assert that schools are "required" to complete the Report of Education Needs, the legal basis of which is sourced from:
i) The Education Act 1988, which identifies as a function of a school to ensure that the education needs of all children, including those with disabilities or special education needs, are identified and provided for.
ii) The Education for Persons with Special Educational Needs Act 2004 ('the EPSEN Act'), which requires schools to cooperate with the NCSE in the performance of the NCSE's function.
51. The Circular seeks to identify what is refers to as the "rare circumstances" in which a teacher or a school may not be in a position to complete a Report of Education Needs and gives the example of where school personnel may not be familiar with the child who does not attend school regularly due to illness. The Circular says that in those circumstances, the NCSE, when notified and in collaboration with the Department, "will work with the school to support the process of completion of the Report of Education Needs." The implicit suggestion is that a way will be found to enable the school to comply with what the Circular asserts is the requirement on it to complete the Report of Education Needs. That seems to ignore the fact that this Court set out other circumstances at para. 26 of the decision in CD1 in which "[a] teacher might legitimately decline to provide the assistance that the assessment officer requires or might indicate an ability to provide some but not all of it."
52. Since the judgment of this Court in CD1, the Minister seems to have imposed the type of compulsion on school personnel to complete a Report of Education Needs that the Court was advised in CD1 did not exist at that time. Paragraph 26 of the judgment refers to counsel for the NCSE and the Minister having acknowledged to the Court "that if school personnel refused to complete an assessment of education needs report, they could not be compelled to do so". The Court went on at para. 32:
"The NCSE contends that the Education Act, in allowing the Minister for Education to determine policy, allows her to require schools to comply with the request for information that was imposed here. It is incorrect to claim that the NCSE has a statutory power to compel a school to return the form within a stated timeframe."
53. The Circular does not take adequate account of the situation that the Court set out in its decision in CD1, where a nominated person might decline to provide assistance or indicate an ability to only provide some but not all of the assistance that was requested. I do not consider it appropriate to identify acceptable or unacceptable reasons in this judgment, suffice to say, as the Court did in the judgment in CD1, that there are circumstances in which a teacher (or other nominated person) might legitimately decline to provide the assistance that the assessment officer requires or might indicate an ability to provide "some but not all [of] it". The Circular, in limiting this to rare circumstances, including where a person barely knows the child, does not reflect the possibility of other circumstances in which a teacher might legitimately decline to provide all or some of the assistance that the assessment officer requires. Any such decision to decline to provide assistance must, itself, be legitimate. That might require situations to be assessed on a case-by-case basis. No provision is made for such an approach in the Circular.
54. In the absence of a legitimate reason why a teacher might be unable to assist, it is possible that the statutory obligations on a school that the Circular relies on from the EPSEN Act 2004 and Education Act 1998, might operate to compel the provision of assistance to an assessment officer to enable an assessment of a child's education needs to be done. However, the Circular is incorrect in how it asserts that those statutory duties of schools in themselves require a school to complete a Report of Education Needs.
Decision
55. Given the clear shortcomings in completing C's Assessment of Need, the Court finds itself once again holding that an assessment of C's education l needs, to be used by an assessment officer in carrying out an Assessment of Need and in setting out their findings and determinations of the matters set out at s. 8(7), has not yet occurred. The assessment officer incorrectly and unlawfully treated the principal's s. 8(3) assistance provided in his Report of Education Needs, as a s. 8(2) assessment. It is possible that a s. 8(3) nominee could also be a s. 8(2) assessor, but that did not occur here. Insofar as C's principal was nominated by the NCSE (and the absence of any evidence of the assessment officer's opinion that there may have been a need for an education service to be provided to C which questions the validity of the nomination) this was only to provide assistance in carrying out the assessment of C's education needs. C's principal was never nominated or appointed to carry out an assessment of C's needs. The assessment officer's apparent belief that the principal's report was also a s. 8(2) assessment was wrong in fact and in law.
56. The assessment officer's primary duty under s. 8 is to conduct an assessment firstly, of the applicant's education needs and secondly, the education services required to meet those needs, on a resource blind basis. They must then prepare a written report (known as an Assessment of Need) setting out their findings and determinations of the matters specified at section 8(7). That did not happen here. The assessment officer has not complied with all of their s. 8 obligations and, in particular, what they were required to do by section 8(7). As a result, the s. 8(6) report the assessment officer was required to prepare, has not yet been prepared.
57. The Assessment of Need that was prepared for C is not in compliance with his and his parents' entitlements pursuant to the 2005 Act to an Assessment of Need which determines C's education needs occasioned to him by his disability and the education services required to meet those needs.
58. I grant an order of certiorari quashing the Assessment of Need of 15 April 2024 and an order of mandamus requiring the HSE to complete C's Assessment of Need report in accordance with the 2005 Act and Regulations made thereunder. No further relief was sought by the applicant. Insofar as I have outlined some shortcomings in the Minister's Circular, it may be that orders are not required to be made as I expect the Minister will take account of the Court's findings but, if necessary, I will allow the applicant liberty to apply.
59. I will put the matter in before me on 3 June 2025 at 10am for final orders. If any party wishes to file written submissions, they should be with the Court at least 48 hours in advance of the matter coming back before me.
Counsel for the applicant: Feichín McDonagh SC and Brendan Hennessy BL
Counsel for the HSE: David Leahy SC and Hugh McDowell BL
Counsel for the NCSE and the Minister: Tony McGillicuddy SC and Eoin Coffey BL
[1] The applicant did not take issue with the fact that the Assessment of Need referred back to earlier 2022 reports from the multidisciplinary team assessments and the earlier input of C's then teacher.