Children with Autism and their Legal Rights to Services

Children with autism and their families face a constant struggle to obtain the services they require. These services could include speech and language therapy, psychology, occupational therapy and educational supports. For children with ASD early intervention is crucial in reducing deficits.

Legal Rights in Ireland

In Ireland the Disability Act 2005 and the Disability Regulations 2007 set out the duties of the HSE to persons with disabilities.

A parent of a child who is displaying signs of autism has a right to make an application for an assessment of need.

Assessment of Need

The purpose of an AON is to look purely to the need of the child and the services required without regard to the constraints posed by the limited resources of the HSE. It was described in G v HSE as “resource blind”.

An AON report should determine whether the child has a disability and provide a written statement:

• of the nature and extent of the disability*
• of the child’s health and education needs
• of the services needed to meet the child’s needs and the ideal timeframe for the provision of those services

This assessment must be commenced by the HSE as soon as possible but not later than three months of the date they receive the application and completed within a further three months from the date the assessment commenced.

If the assessment report determines that provision of health services and/or education services or both are appropriate the HSE must arrange for the preparation of a service statement by a liaison officer.

*In March 2022 the High Court found that the “Standard Operating Procedure” of the HSE to provide 90 minute preliminary assessments that would not formally diagnose a child’s conditions did not comply with the Disability Act 2005.

Service Statement

The service statement is different from the assessment report in that it takes into account the limited resources of the HSE.

The service statement must specify the health services which will be provided to the child, the location(s) where they will be provided and the timeframe for the provision of the services.

The service statement must be completed within one month of receipt of the assessment report.

If the service statement is not complied in full or in part the applicant may make a complaint to the Complaints Officer.

Complaints Officer

Where a complaint is received by the HSE it must be referred to a complaints officer within 10 days of receipt. The complaints officer will then provide a report. If this report contains a finding that the HSE or an education service provider did not fulfil the service statement, a recommendation that the service be provided within a specified period can be made.

The complaints officer’s finding or report may be appealed to the appeals officer if necessary.

Going to Court

If the HSE or Education Service Provider fails to implement the recommendation of a complaints officer within three months the applicant may apply to the Circuit Court for an order directing the implementation of the recommendation.

There may be other scenarios where it is appropriate to take legal action through the courts. For example, an Assessment of Need report may be subject to “Judicial Review” in the High Court.

We Can Help

At Padhraic Harris & Company Solicitors, we have 35 years of experience of dealing with complex legal issues surrounding the provision of healthcare and education.