DISABILITY ACT 2005

GUIDANCE NOTE
No:34
22nd December 2009

Age of Children Applying for Assessment of Need Under the Disability Act.

The HSE challenged a determination of the Disability Appeals Officer (DAO) in the High
Court on a point of law. The case concerned the correct interpretation of the Disability Act
2005 (Commencement) Order 2007 (S.I. No. 234 of 2007) which stated that:

The 1st June 2007 is hereby fixed as the day on which the provisions of Part 2 of the
Disability Act 2005 comes into operation in relation to persons under 5 years of age.

The judgment was delivered on Tuesday 8th December and the HSE’s appeal was
dismissed. Heretofore, the HSE has interpreted the Commencement Order as meaning that
eligible applicants must be under 5 on the date of application. The court found that:

The right to an assessment of needs under s. 9 applies to all children under 5 as of 1 June
2007 and, thereafter, to all children under 5.

The effect of this judgment is to create two classes of applicant.

a. The first of these classes comprises all children who were under 5 on the 1st June
2007. These children are entitled to apply until they are 18;
b. The second of these classes comprises children born after the 1st June 2007. These
children are eligible to apply until they become 5 years of age, but not thereafter.

In effect, the HSE’s previous guidance continues to apply to children born after 1st June
2007 and children who were under 5 on that date are entitled to apply at any time up until
they are 18 years old.

Please note the following:

1. This guidance takes effect immediately.

2. Assessment Officers should search their records for any applicant who was under five
on 1st June 2007 but over five on the date of application and was refused an
assessment on that basis. These applicants should be contacted immediately and
offered an assessment in accordance with this judgment.

3. Enquiries may have been made concerning the possibility of applying for an
assessment and those enquiring advised that such children were not entitled to
apply. Where contact details are available, these people should be immediately
advised of the position outlined in this Guidance Note.