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Office of the Disability Appeals OfficerOifig an Oifigigh Achomhairc um Míchumas

The right to Redress under the Disability Act 2005 Aras AttractaSwinfordTeresa Dykes 25th September 2009

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Redress: a concept

To seek Relief or Remedy(Gifis 1983)

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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 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(Angela.Kennedy1@hse.ie)

Mr Niall Kelly (Niall.Kelly1@hse.ie)

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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

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The ODAO Agenda:

Fairness: The Principles of Natural Justice Good Governance: The ODAO Code of Practice

2008, Code of Practice for the Governance of state Bodies 2009

Effective Communication: To inspire the confidence of 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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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)

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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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) 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 Appeal11. Determination12. Publication Details13. Appendices

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Number of Appeals logged:June 2008-2009

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Geographical Spread of valid Appeals June 2008-June 2009

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1

2

3

4

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LHO Areas

Nu

mb

er o

f V

alid

Ap

pea

ls

Kildare West Wicklow

Wicklow

Dublin South West

Dublin North West

Cork North Lee

Galway

Dublin South

Dublin North Central

Cork South Lee

Dublin South City

Clare

South Tipperary

North Cork

Dublin West

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Independent Mediation

Supervision

Independent Security Systems

Independent Legal

Support Team

ODAOModel in Practice

Continuous Review of Core Competencies

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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: appeal@odao.ieWeb: 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. Consultation Paper Alternative Dispute Resolution

(July 2003)