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 2010
1
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 2010
2
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 2010
3
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 2010
4
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 2010
5
Complaints Officers:

Ms Angela Kennedy
(Angela.Kennedy1@hse.ie)

Mr Niall Kelly
(Niall.Kelly1@hse.ie)
Presentation to the Psychological
Society of Ireland,16th June 2010
6
Appeal: a concept
 Redress
 To
seek Relief or Remedy
(Gifis 1983)
Presentation to the Psychological
Society of Ireland,16th June 2010
7
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 2010
8
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 2010
9
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 2010
10
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 2010
11
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)
Presentation to the Psychological
Society of Ireland,16th June 2010
12
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 2010
13
4. ODAO Preliminary enquiries:
1. Application
Received
Seeking documents from relevant parties
(Applicant/HSE/EDS), requesting
submission in relation to the Appeal
3. Inform Applicant/Appellant of
outcome of screening,
and notify the Respondent of the
Appeal
2. Screen to
establish validity
Awaiting submission of data
Resolution Agreed
Signed resolution document is
copied to applicant & provider &
DAO by Mediation Officer
Yes
Yes
6. Mediation
No. Resolution
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
not agreed
Yes
10
10
Publication of final
anonymous
Determination
Enforcement of
Determination/
Resolution Agreement
(Where/When relevant)
SI 470 of 2009
Yes
7. Further Investigation
Decision made to;
Yes
Issue a determination
Refer to oral hearing
Yes
Yes
9. Determination
Finalised and parties
informed
Presentation to the Psychological
Yes June 2010
Society of Ireland,16th
8. Oral Hearing
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
Presentation to the Psychological
Society of Ireland,16th June 2010
15
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 2010
16
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 2010
17
Determination and Reasons for Decision
Report
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Background: Journey of the applicant to Appeal
Issues raised by the Appeal: Core grounds for the Appeal
Mediation: Deciding if this Appeal may or may not be resolved by
mediation
The Investigation: All evidence received or sought in respect of the
Appeal.
The Case of the Applicant
The Case of the HSE
Relevant Legal Principles applied: Provisions under the Act and the
Regulations, other relevant legislation (Irish and European)
Matters required to be taken into account: Obligations imposed by
section 18(20) of the Act
Findings of the Investigation: Facts relevant to the Appeal
Findings in respect of the issues raised by the Appeal: My analysis of
the facts in respect of the Appeal
The Determination
Publication Details
Appendices
Presentation to the Psychological
Society of Ireland,16th June 2010
18
The 10 questions I ask before
determining Appeals:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Has jurisdiction been proven
What does the Appeal state within the realm of the Act
What are the grounds
Is the evidence supporting the grounds
Have I all the relevant information
Do I need to make further enquires under s 18(6),(7) & (8)
Has the applicant & respondent been given adequate opportunity
with all relevant information to respond; Affording fair procedure
(Article 40.3 of the Irish Constitution)
Has a legal framework been established
Has the Appeal been tested /examined against the legal
framework relevant to the Act
Is the decision I am making clear, reasonable and fair?
Presentation to the Psychological
Society of Ireland,16th June 2010
19
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
Presentation to the Psychological
Society of Ireland,16th June 2010
66.5%
20
Geographical Profile of Valid Appeals lodged by
HSE Administrative Area year ending 2009
HSE West
4
HSE South
14
9
3
Presentation to the Psychological
Society of Ireland,16th June 2010
HSE North
East
HSE Mid
Leinster
21
Status of Appeals at year end 2009
Investigated and Determined as
Withdrawn Appeals
3
At Investigation
3
5
At Examination
Resolved by Mediation
4
Determined
Presentation to the Psychological
Society of Ireland,16th June 2010
14
22
Independent
Legal
Support Team
Continuous Review of
Core Competencies
ODAO
Model in Practice
Evaluation of methodology
Independent
Security
Systems
Independent
Mediation
Supervision
Presentation to the Psychological
Society of Ireland,16th June 2010
23
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.ie
Web: www.odao.ie
Presentation to the Psychological
Society of Ireland,16th June 2010
24
ODAO Contact Details
Office of the Disability Appeals Officer
1st Floor, Dolcain House
Monastery Road
Clondalkin
Dublin 22
01 4614211
Lo Call 1850 211583
Presentation to the Psychological
Society of Ireland,16th June 2010
25
References:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Disability Act 2005
The Disability Act 2005 (Commencement) Order 2007 (S.I. 234 of 2007)
Disability (Assessment of Needs, Service Statements and Redress)
Regulations 2007( S.I. No.263 of 2007)
Chartered Institute of Arbitrators 2008
Judicial Studies Board Essential Skills and Competencies 2008
Annual Report of the Disability Appeals Officer 2008
Annual Report of the Disability Appeals Officer 2009 ( not yet published)
Peter Fenn within the Consultation Paper Alternative Dispute Resolution (July
2008)
Rules of the Superior Courts (SI No.93 of 2009)
The Circuit Court Rule Order 64B (S.I No. 470 of 2009)
Constitution of Ireland
Gifis, H. Steven ,Dictionary of Legal Terms (2008), Fourth Edition:Barron’s
Presentation to the Psychological
Society of Ireland,16th June 2010
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