Assessment of need for people with disabilities

Introduction

The Disability Act 2005 provides for, among other things, the assessment of need of people with disabilities and the consequent drawing up of service statements.

The assessment of need is carried out or arranged by assessment officers who are independent officers of the Health Service Executive (HSE). After the assessment, a service statement is drawn up by a liaison officer who is also an independent HSE official. There is an independent complaints and appeals machinery for people who are dissatisfied with the assessment, the service statement or with the subsequent provision of services. 

At present only children under the age of five are entitled to an assessment. It is intended that other age groups will be gradually be included so that everyone with a disability will be covered by 2011.

The Health Information and Quality Authority (HIQA) have adopted standards for the assessment of need.

Here we describe how the assessment of need provisions are being implemented. The rules will apply to all assessments although at present they apply only to children under five.

All parts of the process, including applications, replies and correspondence between the HSE and the National Council for Special Education (NCSE), must be in writing; this means that the documents are accessible under freedom of information or data protection legislation. It also means that information on the needs of people with disabilities and the services being provided to them will be more readily available. The HSE is obliged to keep records of assessments and services. Each year, the HSE must compile a report on the total needs identified in the assessment reports and the ideal timescale within which those needs should be met.

Assessments

Who is entitled to an assessment
You are entitled to an assessment of need if you consider that you have a disability. You have a disability if there is a substantial restriction in your capacity to carry on a profession, business or occupation or to participate in social or cultural life because of an enduring physical, sensory, mental health or intellectual impairment. 

The disability legislation states that a "substantial restriction'' means that you have a restriction which is permanent or likely to be permanent, results in a significant difficulty in communication, learning or mobility or in significantly disordered cognitive processes, and means that you have a need for services to be provided continually or, in the case of a child, you have the need for services to be provided early in life to ameliorate the disability.

However, the HSE is encouraging people to apply if they are of the opinion that they have a disability, rather than than that they can define it under the disability legislation.

Getting an assessment

You must apply to the HSE in writing (through your Local Health Office, using the official application form) and the HSE must acknowledge your application within 14 days. This acknowledgement must tell you the date on which the assessment will start. The Act provides that the assessment must be started within three months of the application and must be completed without undue delay - there is no specific time limit on its completion. The regulations, however, provide that the HSE must complete the assessment within three months unless there are exceptional circumstances. If there is a delay in completing the assessment you must be told the reason and given a timescale for completion.

Reviews

The following applies generally to assessments of need but is not yet immediately relevant. You may be refused a HSE assessment if you have already had such an assessment and the review period has not yet expired or, if you are a child, you had an assessment in the previous 12 months. You may, however, look for a new assessment if there has been a change in circumstances or further information is available or you consider that there was a mistake of fact in the assessment report.

If you are already being or have been assessed under the Education for People with Special Educational Needs Act 2004 (which is not yet in effect in relation to assessment of needs) you will not generally be entitled to a HSE assessment. However, if the educational assessment shows that you need health services, it must be sent to the HSE for the purposes of drawing up a service statement.

Carrying out the assessment

The HSE has appointed assessment officers who are independent in carrying out their functions. They are based in Local Health Offices and they may be able to help you to fill in the application form and give you whatever information you need. The assessment officers can carry out the assessment themselves or authorise other HSE employees or other experienced people to do so. These people are called assessors. There are provisions for co-operation and co-ordination between this assessment process and the arrangements for the assessment of educational need under the Education for Persons with Special Educational Needs Act 2004.

The assessment must be carried out in accordance with the standards adopted by the Health Information and Quality Authority (HIQA). These standards deal with a range of issues, including Garda clearance for the people carrying out the assessment, the provision of clear and accessible information to applicants and their representatives and the handling of confidential information.

The aim of an assessment is to decide what health and education needs arise from your disability and what services you require to meet those needs. Health services include personal social services and include services provided directly by the HSE and services provided on behalf of the HSE (many of the services for people with intellectual disabilities are provided by voluntary bodies on behalf of the HSE).

The National Council for Special Education (NCSE) is required to help the HSE in the assessments of need for adults with disabilities and the preparation of service statements. In the case of children, if the assessment identifies the need for education services, the assessment officer must refer the matter to the education service provider (usually a school) or the NCSE.

The assessment identifies your needs. It does not take account of the costs of providing for those needs or whether the capacity to provide services to meet the needs is present.

Your role in the assessment
The assessment officer may interview you and your parent, guardian, legal representative or personal advocate. If an interview takes place, the assessment officer must tell you or your parent or guardian what its purpose is unless this would be prejudicial to your mental health, well-being or emotional condition or would be inappropriate with regard to your age or the nature of your disability. The assessment officer must try to ensure that you can understand the process as far as possible.

Assessment report
When the assessment is complete, the assessment officer writes an assessment report which is given to you, to the HSE and, if appropriate, to the NCSE (you receive the service statement (see below) at the same time). The assessment report sets out whether you have a disability and, if you have it sets out:

• A statement of the nature and extent of the disability
• A statement of the health and education needs arising from the disability
• A statement of the appropriate services to meet those needs
• A statement of the period within which a review of the assessment should be carried out (this must be no later than a year from the date the assessment report is issued)

Service statements and delivery of services

Service statements
As already stated, the assessment of need takes account of your needs - it does not address the question of whether or not those needs can be met. The service statement does take into account if those needs can be met and how this can be done. So, the assessment of need does not take available resources into account but the service statement does.

The HSE has appointed liaison officers to draw up service statements. The service statement is based on the assessment report and sets out the health and education services that will be provided to you and the time within which they will be provided. The liaison officer may ask for help from other bodies including the NCSE when drawing up this statement. In the case of children under the age of five, the service statement does not deal with educational services.

When drawing up the service statement, the liaison officer must take a number of factors into account. These include:

• The assessment report
• Your eligibility for services under the Health Acts (these include GP services, free or subsidised prescribed drugs, medicines and appliances, hospital and residential care services; there is a clear entitlement to some of these services but many of them are services which the HSE is not obliged to provide)
• Any approved standards and codes of practice which apply to the services identified in the assessment report
• The practicability of providing the services identified in the assessment report
• The need to ensure that the provision of the services by the HSE would not cause the HSE to spend more money than it is legally entitled to spend
• The advice of the NCSE about the capacity of an education service provider to afford the service in question (if this arises - not in the case of under-fives)

The liaison officer may amend a service statement if circumstances change.

The liaison officer must complete the service statement within a month of receiving the assessment report. You are given a copy of the service statement with your assessment report. The HSE, the NCSE and education service provider are also given a copy if appropriate.

The regulations specify that the service statement must be written in a clear and easily understood manner and it must state:

• The health services which will be provided to you
• The location(s) where the health service will be provided
• The timeframe within which they will be provided
• The date from which the statement will take effect
• The date for review of the provision of services specified in the service statement
• Any other information that the liaison officer considers to be appropriate including the name of any other public body to which the assessment report has been sent

Delivery of services
After the service statement is drawn up, the liaison officer then arranges the delivery of services with the various service providers. In order to do this, the liaison officer may send a copy of the service statement to a relevant public body if you agree to this (or if one of the people who is entitled to apply for an assessment of needs on your behalf agrees to this). The public body concerned is then required to communicate with you (or your representative) or the liaison officer in order to facilitate the provision of services. In effect, the onus is on public bodies to come to you with services rather than you having to approach them.

Complaints and appeals

There is an independent complaints and appeals procedure for the assessment of need process. The first is an independent but internal HSE complaints system and the second is an external appeals officer.

You may complain to the HSE about any of the following:

• A decision by the assessment officer that you do not have a disability
• A failure to carry out the assessment in accordance with standards set by the Health Information and Quality Authority (HIQA)
• A failure to carry out the assessment within the time limits
• The contents of the service statement provided to you
• A failure to provide a service specified in the service statement

Complaints must be made within three months. The complaints officer may dismiss the complaint as frivolous or vexatious but must give reasons in writing for doing this. In many cases, the officer may try to resolve the complaint informally. If this fails or if the issue is not suitable for informal resolution, the complaints officer formally investigates the complaint. You and the other people involved, for example, the assessment officer or the liaison officer or the various service providers must be heard and given the opportunity to present evidence. The complaints officer must issue a report that includes findings and recommendations. When considering the complaint, the complaints officer must consider the factors the liaison officer is obliged to take into account when drawing up the service statement; this means that the financial and other resources involved must be taken into account. Complaint proceedings must be held in private.

Appeals officer
An independent appeals officer has been appointed. You or your representative may appeal to the appeals officer against:

• A finding or a recommendation of the complaints officer
• The failure of the HSE or education service provider to implement a complaints officer's recommendations
  

You or your representative must lodge an appeal within six weeks. The appeals officer may appoint mediator officers who may try to mediate a settlement. However, this cannot happen if you do not agree to it. If mediation is not being used or is unsuccessful, the appeals officer must hear you and the other parties involved and has the discretion as to whether or not to have an oral hearing. This seems to mean that you and the service providers must be interviewed by the appeals officer but this need not take place in the presence of each other. An oral hearing, if it occurs, must be held in private. The appeals officer may ask the assessment officer or the liaison officer to make further inquiries. The appeals officer will have a range of powers including the power to require the production of documents, to apply to the District Court for a search warrant and to have people appear and give evidence.

The appeals officer's decision will be in writing and will be sent to you and to the service providers involved. You may appeal the decision to the High Court on a point of law.

Implementation of complaints and appeals decisions
If the HSE or the education service provider fails to implement the appeals officer's decision or the settlement agreed in the appeals mediation process or the recommendation of a complaints officer (where that has not been appealed) within three months, you or your representative or the appeals officer may apply to the Circuit Court for an order directing its implementation.

The HSE and the education service providers are also entitled to appeal to the appeals officer against a finding or recommendation of a complaints officer.

How to apply

If you consider that you have a disability you may apply (in writing) to the HSE for an assessment. If you are unable to form that opinion yourself and certain people consider that you have a disability they can apply for an assessment in the same way. Alternatively HSE officials may arrange for such an application or may ask the HSE to carry out an assessment. The people who may apply on your behalf are spouses, parents, relatives, guardians, legal representatives and personal advocates. In the case of children under five, the applicant for the assessment is the parent or guardian (or the HSE if the child is in care).

Application forms are available from GPs, pharmacies, hospitals and Local Health Offices or contact the HSE information line: 1850 24 1850.