Ombudsman for Children Statement to the Oireachtas Joint Committee on Children, Disability, Equality, Integration and Youth

I would like to thank the Joint Committee on Children, Disability, Equality, Integration and Youth for inviting me to appear today to discuss the current waiting lists for children to access an assessment of need (AON) and other developments in respect of the AON scheme since the publication of our ‘Unmet Needs’ report in 2020.

As members of the Committee are aware, the Ombudsman for Children’s Office (OCO) is an independent statutory body, which was established in 2004 under the Ombudsman for Children Act 2002 (as amended). The OCO has two core statutory functions, namely:

• to promote the rights and welfare of children under 18 years of age, and
• to examine and investigate complaints made by, or on behalf of, children about the administrative actions of public bodies, schools or voluntary hospitals that have, or may have had, an adverse effect on a child.

The rights and welfare of children with disabilities have been a strategic priority for my office since 2016. In our Strategic Plan for the period 2019 to 2021, we committed to continue to pursue the progressive realisation of the rights of children with disabilities.

 

Unmet Needs

Published in October 2020, ‘Unmet Needs’ raised serious concerns about ongoing violations of the rights of children with disabilities. This included the significant delays experienced by children in accessing an assessment of their needs, despite the HSE’s legal obligations under the Disability Act 2005 (the 2005 Act). The report proposed actions to address these challenges in a child-centred, rights-based manner. As members of the Joint Committee are aware from my meeting with you following the publication of ‘Unmet Needs’ in 2020, the actions we recommended include:

 

1. a review of the 2005 Act, with a particular focus on provisions affecting children and having regard to the EPSEN Act 2004, which we note is now currently under review

 

2. the formal establishment of an Inter-Departmental Group on children with disabilities, which should prioritise actions which address the early identification, early intervention, and early treatment of children with disabilities

 

3. a commitment to significant investment is this area, whereby the State, via the HSE, must ensure the provision of adequate financial, technical and human resources to support the timely completion of AONS and delivery of services to children

 

4. the creation of a centralised HSE database of AON data in order to identify problems, assess progress in strategy implementation, and inform national policy development

 

5. the creation of informational materials on the AON process for both parents and children as well as meaningful engagement with children regarding the AON process.

 

Waiting Lists

Last December, I received confirmation from the CEO of the HSE, Mr Paul Reid, that, as of the 30^th November 2021 and under the HSE’s new Standard Operating Procedure (SOP), 6,161 of a historical backlog of 6,558 AONs on 30^th June 2020 had been completed, and that 2,500 AONs were overdue.

As members of the Committee are aware, this SOP replaced the former Part 2 assessment process, which had resulted in less than 10% of assessments being carried out within the statutory timeframe. Under the new SOP, children have been subject to a uniform screening assessment by two assessors – a Preliminary Team Assessment (PTA) – to be completed in a maximum of 90 minutes, regardless of the child’s needs.

According to Mr Reid, data at the 30^th November 2021 showed that, following their initial PTA, 86% of children were referred for intervention and 54% were sent for further assessment. It is unclear how these percentages overlap, or how many of these children are now in receipt of services.

Published on the 10^th March 2022, the findings of Inclusion Ireland’s recent parent experience survey about Progressing Disability Services found that, out of the 1,013 families who responded, 83% reported a lack of services as one of their top three issues and only 28% were engaging with services. According to Inclusion Ireland’s report: ‘Many parents reported that their child spent a significant time on a waiting list for assessment or therapy intervention. 95% have waited more than 6 months to avail of services, 85% reported that they have waited or continue to wait for more than a year”[1]. While 5% of families reported waiting for less than 6 months, the same percentage have waited 6 years to access services. Communications by the HSE were also described as poor, with 27 families reporting their distress on receiving service statements which highlighted a need for intervention and the scheduled date for intervention often two years from the time of assessment.

 

In ‘Unmet Needs’ we raised concerns that the PTA would just push back children’s diagnostic assessments and would be less thorough, given the time restriction placed on clinicians. These concerns were not unfounded.

In a High Court Judgement delivered on Friday, the 11th March, Justice Siobhán Phelan concluded that the HSE had impermissibly sought, through the introduction of the SOP, to alter what is required under Part 2 of the 2005 Act.

In the case of applicants CTM and JA, she determined that the assessment officers, whilst preparing a report in full compliance with the SOP, had ‘failed to determine that the significant restrictions presenting on initial assessment were caused by an enduring physical, sensory, mental health or intellectual impairment (being the categories of disability identified in s.2 of the 2005 Act) but proceeded on the basis that diagnostic assessment of the nature and extent of the disability was not required.’[2]

Significantly, Justice Phelan noted that ‘it is only through the proper identification of need that steps can be taken to secure the services to meet that need, and so it is not permissible to avoid the proper discharge of the statutory assessment duty because it may lead to heightened awareness of and frustration with deficits in the actual provision of services’.[3] I concur with this view.

It should be noted that the new SOP was due to be reviewed by an independent Chair after 12 months (January 2021). However, the report arising from this review remains outstanding. As it stands, the continued implementation of the SOP remains part of the HSE’s National Service Plan 2022.[4] In my view, in light of the High Court judgement delivered on the 11^th March, the review of the SOP is now redundant and continued implementation of the SOP is untenable.

 

I wish to renew my call for the recommended actions set out in our ‘Unmet Needs’ report to be advanced, in particular as regards the legislative changes required so that the State meets its obligations to children under the UNCRC and the UNCRPD and the investment of resources needed to ensure that children receive an AON and, crucially, corresponding services in a timely fashion.

In light of the above I wish to call on the HSE to outline clearly to this Committee today, and indeed to families of children with disabilities, what it requires from Government to meet its obligations under Part 2 of the 2005 Act and to ensure that children receive the services they need in a timely manner.

My renewed thanks to the Committee for inviting my Office to attend today. I am happy to take questions if I can be of further assistance.

[1] Inclusion Ireland Progressing Disability Services for Children and Young People: Parent Experience Survey Report, p.4

[2] Paragraph 181, CTM & JA v HSE, 2022 IEHC 131

[3] Paragraph 182 CTM & JA v HSE, 2022 IEHC 131

[4] HSE National Service Plan 2022, p. 57

• 23 March 2022
• Type: Statement
• Topic: Disability