Presentation to the Psychological Society of Ireland,16th June Office of the Disability Appeals Officer Oifig an Oifigigh Achomhairc um Míchumas The role and function of the Disability Appeals Officer under section 16 of the Disability Act 2005 Teresa Dykes

Presentation to the Psychological Society of Ireland,16th June 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.”

Presentation to the Psychological Society of Ireland,16th June 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.

Presentation to the Psychological Society of Ireland,16th June 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

Presentation to the Psychological Society of Ireland,16th June Basis for a Complaint (continued) The assessment was not conducted 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

Presentation to the Psychological Society of Ireland,16th June Complaints Officers:  Ms Angela Kennedy  Mr Niall Kelly

Presentation to the Psychological Society of Ireland,16th June Appeal: a concept Redress To seek Relief or Remedy (Gifis 1983)

Presentation to the Psychological Society of Ireland,16th June 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

Presentation to the Psychological Society of Ireland,16th June 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

Presentation to the Psychological Society of Ireland,16th June ODAO Mission Statement: To provide and deliver an independent, fair, accessible and transparent appeals service in a timely and courteous manner

Presentation to the Psychological Society of Ireland,16th June 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 Appeals

Presentation to the Psychological Society of Ireland,16th June The ODAO Agenda: Fairness: The Principles of Natural Justice and Fair Procedures Good Governance: The ODAO Code of Practice nd Edition, Code of Practice for the Governance of state Bodies 2009 Effective Communication: To inspire confidence in all who access the service Performance Standards: e.g.7 C’s Principle (JSB 2008), Facilitative Model of Mediation (Chartered Institute of Arbitrators)

Presentation to the Psychological Society of Ireland,16th June The 7 C Principle of making good Decisions (Judicial Studies Board 2008), to support clear and rational determinations within the appeals process. Consistency- both internally and externally Corroboration- including corroboration of all documents Context- does the appeal the Disability Appeals Officer is considering fit with available objective evidence and the context for the events involved. Credibility- facts are tested against the evidence so that decisions made by the Disability Appeals Officer are credible Cover up- that there is no reason that the applicant/appellant/respondent are concealing any relevant information Conduct- relevant to each case Critical Examination- has the evidence been thoroughly tested by the Disability Appeals Officer

Presentation to the Psychological Society of Ireland,16th June 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) SI 470 of 2009 Yes No. Resolution not agreed Yes 7. Further Investigation Decision made to; Issue a determination Refer to oral hearing

Presentation to the Psychological Society of Ireland,16th June 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

Presentation to the Psychological Society of Ireland,16th June Facilitative Model of Mediation “In facilitative mediation the mediator structures a process to assist the parties in reaching a mutually-agreeable resolution. The mediator is in charge of the process while the parties are in charge of the outcome” (Fenn 2005)

Presentation to the Psychological Society of Ireland,16th June 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 if required)  Evidence presented and any representations made at an oral hearing (if heard) and  The matters referred to in Section 11(7)

Presentation to the Psychological Society of Ireland,16th June 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 facts in respect of the Appeal 11. The Determination 12. Publication Details 13. Appendices

Presentation to the Psychological Society of Ireland,16th June The 10 questions I ask before determining Appeals: 1. Has jurisdiction been proven 2. What does the Appeal state within the realm of the Act 3. What are the grounds 4. Is the evidence supporting the grounds 5. Have I all the relevant information 6. Do I need to make further enquires under s 18(6),(7) & (8) 7. Has the applicant & respondent been given adequate opportunity with all relevant information to respond; Affording fair procedure (Article 40.3 of the Irish Constitution) 8. Has a legal framework been established 9. Has the Appeal been tested /examined against the legal framework relevant to the Act 10. Is the decision I am making clear, reasonable and fair?

Presentation to the Psychological Society of Ireland,16th June Analysis of grounds for Appeals concluded in 2009 (21) Grounds of Appeal involved Number of Appeals Percentage Against a finding by the Complaints Officer that his complaint was not well founded 628.5% Against a recommendation of a Complaints Officer 15% Against the non implementation of the recommendations of the Complaints Officer %

Presentation to the Psychological Society of Ireland,16th June Geographical Profile of Valid Appeals lodged by HSE Administrative Area year ending 2009

Presentation to the Psychological Society of Ireland,16th June Status of Appeals at year end 2009

Presentation to the Psychological Society of Ireland,16th June ODAO Model in Practice Independent Legal Support Team Independent Security Systems Independent Mediation Supervision Evaluation of methodology Continuous Review of Core Competencies

Presentation to the Psychological Society of Ireland,16th June ODAO Personnel  Mary Caffrey, Executive Officer  Donna Grehan, Higher Executive Officer  Eileen Duffy, Mediation Officer ext 4231  Teresa Dykes, Disability Appeals Officer E mail: Web:

Presentation to the Psychological Society of Ireland,16th June ODAO Contact Details Office of the Disability Appeals Officer 1st Floor, Dolcain House Monastery Road Clondalkin Dublin Lo Call

Presentation to the Psychological Society of Ireland,16th June References: 1. Disability Act 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 Judicial Studies Board Essential Skills and Competencies Annual Report of the Disability Appeals Officer Annual Report of the Disability Appeals Officer 2009 ( not yet published) 8. Peter Fenn within the Consultation Paper Alternative Dispute Resolution (July 2008) 9. Rules of the Superior Courts (SI No.93 of 2009) 10. The Circuit Court Rule Order 64B (S.I No. 470 of 2009) 11. Constitution of Ireland 12. Gifis, H. Steven,Dictionary of Legal Terms (2008), Fourth Edition:Barron’s