Earlier this month, the High Court issued an important ruling about the rights of citizens. The citizens in question are children.
The rights concern their entitlement to an education. These children, for the greater part, are suffering from one form of disability or other but the State ostensibly recognises that they are entitled to the same rights as every other child.
The State has also, through various agencies, long attempted to deny, or at least undermine, those rights.
Assessment of need process
The High Court ruling concerned a challenge taken by the parents of a child who had received an assessment of need (AON).
An AON is the first and vital step in determining if a child has a disability. From that, the child’s needs are identified as are the kind of services required that will ensure the child can meet his or her potential. This process is so important that it is written into law with the highly unusual feature of a time limit included.
The 2005 Disability Act provides that an AON must be carried out within three months of an application. Urgency is injected into the process for the good reason that time is a vital component in addressing a child’s needs.
As long as a condition goes undiagnosed or untreated, whether the disability is physical or psychological, the greater the chance of regression, sometimes to a point where potential is completely depressed. This matter can have lifelong consequences for any child who requires treatment.
On the face of it, the enactment of the 2005 Act recognises all this and accommodates it. In reality, State agencies, principally the HSE and Tusla, have continually ignored the law.
Over the last 10 years in particular, there has been a whole raft of legal challenges in which parents have asked the court to force the state agencies to obey the law. These parents generally spend much of their days fighting one organ of the State or another in an attempt to have their children’s rights asserted. And then they find themselves having to enter a legal system freighted with stress and the possibility of financial ruin.
Yet they quite obviously feel they have no choice if they want to do right by their offspring.
Recent case in the High Court
The recent High Court ruling illustrates some of the shortcomings of the State in observing the law. The challenge was on behalf of a child, anonymised as D, for whom an AON was carried out. One element of the AON is possible educational needs. For a long time, there was suspicions that the practices deployed in assessing educational needs was at times cursory, and certainly not of a standard that might be expected. One issue was the appointment of teachers who were not suitably qualified to conduct elements of the assessment. That practice arose in this case.
The deputy principal of the school where D attended was one of three teachers asked to assess the child’s needs in October 2022. In the legal challenge, the deputy principal swore an affidavit setting out his role and candidly admitted the shortcomings.
“Whilst he was of the view that he was not qualified to do what he referred to as a ‘true assessment’ because he said he was not qualified to run certain tests on D that he considered to be necessary, he did complete the report out of compliance and because he did not want to let D down,” Judge Marguerite Bolger ruled.
“In his affidavit, he set out his concern about the short period of time he was given to complete the report which he described as a ‘box-ticking exercise’ with no real engagement with D’s educational needs or the educational services required to meet those needs.”
Judge Bolger criticised the process and determined that it did not meet requirements under the Disability Act.
What exactly replaces it is a matter now due to be heard before the court. There is now the prospect that thousands of children who had their assessment under the system at issue may now require to be reassessed. Time, more precious in this respect than it is in general, has been lost.
What the case did do was illustrate once more how children have been shortchanged by state agencies in attempts to have their rights asserted when a concerned observer such as a senior teacher describes one element of the process as a “box-ticking exercise”.
Criticism of procedures in another case
This is just the latest shortcoming in the process that has had to be rectified by a court. In 2019, the HSE introduced what might best be described as a shortcut to providing an AON. This was known as a standard operating procedure (SOP) which cut out or curtailed aspects of the assessment. Ostensibly this was done to shorten waiting lists. In other words, rather than applying extra resources required to meet the needs of children with a disability, the HSE simply provided an expedited, substandard service.
This was referenced in a High Court judgement ruling the SOP to be illegal.
“It is acknowledged by the respondent [HSE] that prior to the adoption of the SOP, AON were more extensive and involved a range of diagnostic assessments,” Judge Siobhán Phelan ruled.
“The evidence suggests that some assessments took as long as 90 hours of clinical time, with an average time of 29 hours clinical time. In contrast, due to the changes introduced by the respondent in relation to the nature of how assessments are completed by way of a preliminary team assessment, such assessments conducted under the new SOP are typically completed within 60-90 minutes of clinical time.”
Both cases highlight flaws in the system
In both of these cases, the system was shown to be flawed in a manner that delivered an inferior service to that provided for in law. The State agencies, principally the HSE, were found to be doing a disservice to one of the most vulnerable constituencies in society.
Yet it should also be acknowledged that the HSE, as with other agencies, often prioritise services where most political pressure is applied.
That has not happened here. The only time that pressure is applied to do right by children with disabilities is when the media highlight a personal story that illustrates the neglect and challenges in this sector. The subsequent public outcry is transient as is any political pressure applied following such exposes.
What is required is a strategy that ensures sufficient resources and attention are given to this area by a vigilant body politic.
Such an approach might at last engrain a culture in the system in which children who need services are accorded the proper status and recognition that they deserve.