Presentation to the Psychological Society of Ireland,16th June 2010 1 Office of the Disability Appeals Officer Oifig an Oifigigh Achomhairc um Míchumas

Presentation to the Psychological Society of Ireland,16th June 2010

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Office of the Disability Appeals OfficerOifig an Oifigigh Achomhairc um Míchumas

The role and function of the Disability Appeals Officer under section 16 of the Disability Act 2005

Teresa Dykes


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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.”


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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.


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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


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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


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Complaints Officers:

Ms Angela Kennedy([email protected])

Mr Niall Kelly ([email protected])


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Appeal: a concept

RedressTo seek Relief or Remedy

(Gifis 1983)


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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


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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


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ODAO Mission Statement:

To provide and deliver an independent, fair, accessible and transparent appeals service in a timely and courteous manner


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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


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The ODAO Agenda:

Fairness: The Principles of Natural Justice and Fair Procedures

Good Governance: The ODAO Code of Practice 2010 2nd 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)


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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


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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

informed8. 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

10Publication 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 mediationUndertake an investigation; and/orRefer to an oral hearing; and/orIssue a determination

10Enforcement of Determination/ Resolution Agreement(Where/When relevant)SI 470 of 2009

YesYes

Yes

No. Resolution not agreed

Yes

Yes

Yes

Yes

Yes

7. Further InvestigationDecision made to;

Issue a determination Refer to oral hearing


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Mediation:

Appeals Officer can refer the appeal to mediation ifShe is of the opinion that the appeal could be resolved at mediation andThe 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


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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)


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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)


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Determination and Reasons for Decision Report1. Background: Journey of the applicant to Appeal2. Issues raised by the Appeal: Core grounds for the Appeal3. Mediation: Deciding if this Appeal may or may not be resolved by

mediation4. The Investigation: All evidence received or sought in respect of

the Appeal.5. The Case of the Applicant6. The Case of the HSE7. 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 Appeal10. Findings in respect of the issues raised by the Appeal: My analysis

of the facts in respect of the Appeal11. The Determination12. Publication Details13. Appendices


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The 10 questions I ask before determining Appeals: 1. Has jurisdiction been proven2. What does the Appeal state within the realm of the Act3. What are the grounds4. Is the evidence supporting the grounds5. Have I all the relevant information6. 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 established9. Has the Appeal been tested /examined against the legal

framework relevant to the Act10. Is the decision I am making clear, reasonable and fair?


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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

6 28.5%

Against a recommendation of a Complaints Officer

1 5%

Against the non implementation of the recommendations of the Complaints Officer

14 66.5%


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Geographical Profile of Valid Appeals lodged by HSE Administrative Area year ending 2009

4

9

3

14

HSE West

HSE South

HSE NorthEast

HSE MidLeinster


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Status of Appeals at year end 2009

14

4

5

3

3

Determined

Resolved by Mediation

At Examination

At Investigation

Investigated and Determined asWithdrawn Appeals


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Continuous Review of Core Competencies

Evaluation of methodologyIndependent Mediation

Supervision

Independent Security Systems

Independent Legal

Support Team

ODAOModel in Practice


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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: [email protected]: www.odao.ie


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ODAO Contact Details

Office of the Disability Appeals Officer1st Floor, Dolcain HouseMonastery RoadClondalkinDublin 2201 4614211Lo Call 1850 211583


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References:

1. Disability Act 20052. 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 20085. Judicial Studies Board Essential Skills and Competencies 20086. Annual Report of the Disability Appeals Officer 20087. 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 Ireland12. Gifis, H. Steven ,Dictionary of Legal Terms (2008), Fourth

Edition:Barron’s

Documents

Presentation to the Psychological Society of Ireland,16th June 2010 1 Office of the Disability Appeals Officer Oifig an Oifigigh Achomhairc um Míchumas