The parents of a six-year-old autistic boy were today awarded more than €60,000 in compensation by the High Court.
Mr Justice Michael Peart ruled that the State delayed in providing Seán Ó Cuanacháin, Mountain View, Arklow, Co Wicklow with education between 2002 and 2004.
The family argued that the State was compelled to provide Seán with 30 hours a week of Applied Behavioural Analysis (ABA), a type of education for autistic children.
Mr Justice Michael Peart ruled last month that the programme of education being provided by the State was "appropriate autism-specific educational provision". On that basis, he declined to make orders requiring the State to fund an ABA programme.
However Mr Justice Peart said today that delays which occurred in diagnosis, provisions of therapy, and interventions do constitute a breach of duty of care of the Health Service Executive (HSE).
Noting the good progress that Seán has made, he awarded the family general damages of €60,000 and special damages of €10,686.56.
The issues of costs, which are estimated at more than €5 million for the 64-day case will be mentioned before the court on May 23rd.
The State, and experts called on its behalf, had contended the alternative eclectic and model A programme of education now provided for Seán was adequate and appropriate to his needs. Experts for the boy's parents disputed that and contended the ABA system was essential to his progressing.
The action is considered a test case in relation to whether the State has an obligation to provide funding for education for autistic children according to the ABA method. It is estimated hundreds of children will be affected by the decision.
Seán was diagnosed as having autistic spectrum disorder in 2002 and had home tuition funded by the Department of Education.
Funding was increased to 15 hours per week in January 2004 but an educational psychologist said it should be increased to 30 hours per week.
In his 270-page judgement today, Mr Justice Peart said: "This case is not about deciding which of two models is to be preferred, but only whether what is proposed by the Department can be classified as an appropriate educational provision for an autistic child, who has reached the age of six years."
He commended the parents for the "doggedness" with which they pursued their efforts to achieve what they considered their son needs from the time that his diagnosis was confirmed.
But Mr Justice Peart said he was not satisfied by the evidence submitted by the plaintiff that the eclectic provision, and in particular Model A for the child, is not an appropriate autism-specific provision.
"His parents may well prefer if he could continue with his primary school education under the exclusive ABA model which they say, and I accept, has served him well to date, but that does not mean that if he cannot do so because there is not such a school in his area, and that the only provision of autism specific education adjacent to where he resides is one which is delivered through an eclectic model, that his rights to appropriate education under the Constitution have been breached, provided that available provision is an appropriate one," he said.
However Mr Justice Peart said he was satisfied that there was delay following diagnosis in having interventions put in place.
"In my view there was a twelve months period of time which was lost to the plaintiff and that this was significant in terms of what he might have gained in reduction of deficits during that time," he said. "I am satisfied that this impacted on his life at home and on his development both in physical terms and in terms of learning, and particularly in terms of language and adaptive behaviour."
Mr Justice Peart assessed general damages in the sum of €50,000 to reflect the loss of twelve months in the provision of appropriate interventions, and the impact of that on the rate of the child's developmental progress at a critical time, and on his behaviours.
He awarded a further €10,686.56 in special damages arising in large part from the State's failure to prove an adequate home tuition grant from July 2005.