1. 1 Office of the Disability Appeals Officer Oifig an Oifigigh Achomhairc um Míchumas The right to Redress under the Disability Act 2005 Aras Attracta Swinford Teresa Dykes 25 th September 2009

2. 2 Redress: a concept To seek Relief or Remedy (Gifis 1983)

3. 3 Legislative Landscape The Disability Act 2005 (Commencement) Order 2007 (Statutory Instrument 234 of 2007) fixed the 1st June 2007 as the day on which the provisions of Part 2 of the Disability Act 2005 (“the Act”) came into operation in relation to persons under 5 years of age. Substantive rights are created by Part 2 of the Act which rights include relevantly the statutory entitlement to an independent assessment of health and education needs pursuant to section 9. The Act recites that it is an Act to enable “provision to be made for the assessment of health and education needs occasioned to persons with disabilities by their disabilities.”

4. 4 Making a Complaint under the Disability Act 2005 (“the Act”) Section 15 of the Act provides that The Executive shall authorise such and so many employees of the Executive as it considers appropriate ( referred to in this Part as “complaints officers”) to perform the functions conferred on complaints officers by this Part.

5. 5 Basis for a Complaint A determination by the assessment officer that the applicant does not have a disability The assessment was not commenced within 3 months or was not completed within 3 months of commencement or was not completed without undue delay

6. 6 Basis for a Complaint (continued) The assessment was not conducted in in a manner conforming to HIQA standards The contents of the service statement provided to the applicant The fact that the HSE or the education service provider failed to provide or fully provide a service specified in the service statement

7. 7 Complaints Officers:  Ms Angela Kennedy (Angela.Kennedy1@hse.ie)  Mr Niall Kelly (Niall.Kelly1@hse.ie)

8. 8 The right to Appeal under Part 2 of the Act Section 16 (1) recites; There shall be a person, who shall be appointed by the Minister, and who shall be known, and is referred to in this Act, as “the appeals officer", to consider and determine appeals under this Part

9. 9 Basis for an Appeal under the Disability Act 2005 (“the Act”)  By an applicant  Against a finding or recommendation of a Complaints Officer  Against the non implementation of a Complaints Officer’s recommendation by HSE or an education service provider  By HSE or an education service provider  Against the recommendation of a Complaints Officer relating to the provision of a service specified in the Service Statement

10. 10 ODAO Mission Statement: To provide and deliver an independent, fair, accessible and transparent appeals service in a timely and courteous manner

11. 11 Functions of the Disability Appeals Officer To validate To seek relevant information To make further enquiries To examine To refer when relevant to mediation To investigate To conduct oral hearings if required To determine

12. 12 The ODAO Agenda: Fairness: The Principles of Natural Justice Good Governance: The ODAO Code of Practice 2008, Code of Practice for the Governance of state Bodies 2009 Effective Communication: To inspire the confidence of all who access the service Performance Standards: e.g.7 C’s Principle (JSB 2008), Facilitative Model of Mediation (Chartered Institute of Arbitrators )

13. 13 4. ODAO Preliminary enquiries: Seeking documents from relevant parties (Applicant/HSE/EDS), requesting submission in relation to the Appeal 6. Mediation Resolution Agreed Signed resolution document is copied to applicant & provider & DAO by Mediation Officer 9. Determination Finalised and parties informed 8. Oral Hearing 3. Inform Applicant/Appellant of outcome of screening, and notify the Respondent of the Appeal 2. Screen to establish validity 1. Application Received 10 Publication of final anonymous Determination Awaiting submission of data 5. Assessment of the Appeal: Evaluation of documents and information obtained for the purposes of deciding whether to:  Refer to mediation  Undertake an investigation; and/or  Refer to an oral hearing; and/or  Issue a determination 10 Enforcement of Determination/ Resolution Agreement (Where/When relevant) Yes No. Resolution not agreed Yes 7. Further Investigation Decision made to; Issue a determination Refer to oral hearing

14. 14 Mediation:  Appeals Officer can refer the appeal to mediation if She is of the opinion that the appeal could be resolved at mediation and The applicant does not object to mediation  If mediation is successful the agreement will be recorded in writing and signed by the parties  A mediation agreement is enforceable through the courts

15. 15 Determinations: Before making a decision the Disability Appeals Officer shall consider the following:  The relevant notice pursuant to Section 18 of the Act 2005  Any relevant information obtained under Section 18 subsections (6),(7) and (8) of the Act 2005 (i.e. further enquiries, information obtained from persons or entering a premises)  Evidence presented and any representations made at an oral hearing (if heard) and  The matters referred to in Section 11(7)

16. 16 Determination and Reasons for Decision Report 1. Background: Journey of the applicant to Appeal 2. Issues raised by the Appeal: Core grounds for the Appeal 3. Mediation: Deciding if this Appeal may or may not be resolved by mediation 4. The Investigation: All evidence received or sought in respect of the Appeal. 5. The Case of the Applicant 6. The Case of the HSE 7. Relevant Legal Principles applied: Provisions under the Act and the Regulations, other relevant legislation (Irish and European) 8. Matters required to be taken into account: Obligations imposed by section 18(20) of the Act 9. Findings of the Investigation: Facts relevant to the Appeal 10. Findings in respect of the issues raised by the Appeal: My analysis of the Appeal 11. Determination 12. Publication Details 13. Appendices

17. 17 Number of Appeals logged: June 2008-2009

18. 18 Geographical Spread of valid Appeals June 2008-June 2009

19. 19 ODAO Model in Practice Independent Legal Support Team Independent Security Systems Independent Mediation Supervision Continuous Review of Core Competencies

20. 20 ODAO Personnel  Mary Caffrey, Executive Officer 01 4614224  Donna Grehan, Higher Executive Officer 01 4614226  Eileen Duffy, Mediation Officer 01 4641981 ext 4231  Teresa Dykes, Disability Appeals Officer 01 4614228 E mail: appeal@odao.ieappeal@odao.ie Web: www.odao.ie

21. 21 ODAO Contact Details Office of the Disability Appeals Officer 1st Floor, Dolcain House Monastery Road Clondalkin Dublin 22 01 4614211 Lo Call 1850 211583

22. 22 References: 1. Disability Act 2005 2. The Disability Act 2005 (Commencement) Order 2007 (S.I. 234 of 2007) 3. Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007( S.I. No.263 of 2007) 4. Chartered Institute of Arbitrators 2008 5. Judicial Studies Board Essential Skills and Competencies 2008 6. Annual Report of the Disability Appeals Officer 2008 7. Consultation Paper Alternative Dispute Resolution (July 2003)