The HSE spends an average of €27,500 on legal fees for each court challenge successfully taken against it over delays in resolving complaints about children’s disability assessments, a senior manager has said.
Elaine Ahern told the High Court that complaints received under the 2005 Disability Act now take an average of 9½ months to decide due to backlogs.
However, she said in a sworn statement that when a judicial review challenge is brought over a delay in deciding on a given complaint, the HSE agrees to an order that it must determine that complaint within eight weeks.
Many of the complaints relate to earlier alleged hold-ups in assessing a child’s needs, the standard or findings of a needs assessment or the contents of a statement listing the services the HSE proposes to provide a child.
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Ms Ahern, a senior manager in respect of assessment of needs complaints, said complaints have significantly increased in volume and complexity in recent years, with a “spike” from 2022 onwards in those involving legal representation.
In all of the cases before the High Court, she said legal costs have been awarded to the complainants, averaging €20,000 when resolved at an early stage, while the HSE must also cover its own legal costs of about €7,500 per case.
The affidavit came in response to a direction from the judge in charge of the High Court’s judicial review list, Ms Justice Niamh Hyland, who expressed concerns about a “very bad use of court time and of legal costs”. She said litigation was being used to prioritise which complaints are dealt with.
She observed that she will some weeks see seven or eight new challenges alleging delay to complaints, which “obviously has a very significant impact” on the court’s operations. Last week, she said it seems that once court proceedings are issued, the HSE takes a different approach to a complaint.
Barrister Hugh McDowell, for the HSE, said complaints can take up to 11 months to resolve but when proceedings are issued, the HSE accepts it should agree to decide the applicant’s complaint much earlier.
The “net effect” of this, he said, is that someone who litigates can get their grievance dealt with quicker than someone who does not.
The office, which currently has three full-time staff and one part-time worker, has approval to hire four more people but must try to recruit internally because of a HSE freeze on hiring administrative staff, the court heard.
Ms Justice Hyland said she would reserve until April her decision on whether to make an order, sought by a complainant and the HSE, that a mother’s complaint must be determined within eight weeks.
Although “unusual” for the court not to make an order when both parties are consenting, she noted a recent Supreme Court judgment stating that the High Court is “very much at large” when its judicial review mechanism is invoked.
In her affidavit, Ms Ahern said the HSE received 1,506 complaints under the 2005 Act last year, up 67 per cent on 2022. The 366 complaints received so far this year equated to a further 28 per cent volume rise, she said.
In early 2019, she said, these complaints took an average of 22 days to resolve, compared with 9½ months at present. The backlog has arisen due to staff in the office being assigned to other duties during the Covid-19 pandemic and the rise in complaints.
Two High Court judgments from 2022 increased the complexity of complaints related to needs assessments and statements of proposed services, she said. As judicial reviews mount and “legal scrutiny intensifies”, she said the office faces a heightened administrative burden.
The implementation of “pre-action protocol” sees the office receive legal letters before a judicial review challenge is initiated over delay, she said.
The office has decided that “to prioritise complaints upon receipt of the letter before action […] would be inequitable and lead to inherent unfairness to other complainants who are not in a position to litigate, or face barriers to litigation for various reasons or choose not litigate,” she said.
Judicial reviews that have come before the court over the delays are resolved on the first court return date, with the HSE consenting to an order to decide these complaints within eight weeks, she said.
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