The Health Service Executive (HSE) recruitment freeze is delaying the handling of complaints about child disability assessments and leading to several new High Court challenges each week.
Ms Justice Niamh Hyland was told there are insufficient staffing levels to deal with the volume of complaints coming through to the National Disability Complaints Office under section 14 of the 2005 Disability Act.
Under the 2005 Act, a qualifying child can apply for an assessment, to be completed within six months, of their health and education needs arising from their disability. They are also entitled to an assessment report and a statement of support services they will receive.
They can complain via a statutory mechanism if they are unhappy with any part of this process.
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Last November, an existing embargo preventing hiring managerial and administrative staff was extended to nearly all roles, save for consultants, doctors in training and 2023 graduate nurses and midwives.
David Leahy SC, for the HSE, told the court the hiring freeze means his client can only fill the gaps in the complaints office by recruiting internally. There is a “blockage” in the system, and the HSE is not able to improve matters at the moment, he said.
That is why there is a large number of similar cases coming before the court, and he cannot resist “yet another” application to the court seeking orders compelling the HSE to determine a complaint, he added.
Mr Leahy said a previous ruling has determined the main legal issue in the cases.
Ms Justice Niamh Hyland said the legal costs of meeting this “quite steady flow” of cases “must be quite considerable”. She is seeing at least three to four new ones per week, which is a “very bad use of court time and of legal costs”, she added.
Litigation is being used to prioritise which complaints are dealt with, she said, adding that she understands the context within which this happening.
In two such delay challenges she made orders on Tuesday with the consent of both sides. The HSE agreed to consider and determine the applicants’ complaints lodged under section 14 of the 2005 Act. Its concession also meant the applicants were entitled to the legal costs.
The cases were brought by children alleging “egregious” delay in determining their complaints was tantamount to refusals.
Their barrister, Brendan Hennessy, instructed by KM Solicitors, welcomed the HSE’s clarifications. He told the court a child “literally could be waiting years with nothing happening” in their complaint if they do not secure a court order in this way.
The 2005 Act does not specify a period within which a complaint must be determined.
One of the children whose cases was settled this week waited 11 months for an assessment of his needs (five months beyond the statutory completion time) before his mother complained to the national office last summer.
In October the office allegedly said the complaint is not capable of being resolved presently as there is an eight-month waiting time before it will be assigned to a complaints officer, with a further two months required for investigation.
In a 2020 judgment, Mr Justice Anthony Barr outlined evidence from the HSE that 246 of 291 complaints the office received over four months in 2019 were completed within 30 working days. He was told cases take an average of 22 days to resolve, while straightforward ones can be determined within seven days.
The child’s case alleged the determination of straightforward complaints now takes about 300 days, which is “absurd and contrary to the intention of the legislature”.
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