Disability Act 2005

PART 1 Preliminary and General

1. Short title and commencement.

1.—(1) This Act may be cited as the Disability Act 2005.

(2) Subject to subsection (3), this Act shall, except in relation to a provision whose commencement is otherwise provided for by this Act, come into operation on such day or days as, by order or orders made by the Minister, may be fixed therefor either generally or with reference to any particular purpose or provision, and different days may be so fixed for different purposes and different provisions.

(3) Part 2 shall come into operation on such day or days as, by order or orders made by the Minister for Health and Children, where appropriate, after consultation with the Minister for Education and Science, may be fixed therefor either generally or with reference to persons of different ages or with reference to any other particular purpose or provision and different days may be so fixed for persons of different ages, for other different purposes or for different provisions.

2. Interpretation.

2.—(1) In this Act, except where the context otherwise requires—

“Act of 1999” means the National Disability Authority Act 1999;

“Defence Forces” has the meaning assigned to it by the Defence Act 1954;

“disability”, in relation to a person, means a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment;

“Executive” means the Health Service Executive;

“functions” includes powers and duties and references to the performance of functions include, with respect to powers and duties, references to the exercise of the powers and the carrying out of the duties;

“head” in relation to a public body means, the person who holds, or performs the functions of the office of the chief executive officer (by whatever name called) of the body;

“local authority” has the meaning assigned to it by the Local Government Act 2001;

“Minister” means the Minister for Justice, Equality and Law Reform;

“passenger transport service” does not include an air service within the meaning of the Air Navigation and Transport Act 1965 or a service provided by a person who only operates a train service or railway infrastructure of historic or touristic interest;

“public body” means—

(a) a Department of State,

(b) the Office of the President,

(c) the Office of the Attorney General,

(d) the Office of the Comptroller and Auditor General,

(e) the F1[Houses of the Oireachtas Service],

(f) a local authority,

(g) the Executive,

(h) a person, body or organisation (other than the Defence Forces) established—

(i) by or under any enactment (other than the Companies Acts 1963 to 2003), or

(ii) under the Companies Acts 1963 to 2003, in pursuance of powers conferred by or under another enactment, and financed wholly or partly, whether directly or indirectly, by means of moneys provided, or loans made or guaranteed, by a Minister of the Government or shares held by or on behalf of a Minister of the Government;

“service” means a service or facility of any kind provided by a public body which is available to or accessible by the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes—

(a) the use of any place or amenity owned, managed or controlled by a public body,

(b) the provision of information or an information resource or a scheme or an allowance or other benefit administered by a public body,

(c) any cultural or heritage services provided by such a body, and

(d) any service provided by a court or other tribunal.

(2) In this Act—

(a) a reference to a Part, section or Schedule is a reference to a Part or section of, or a Schedule to this Act, unless it is indicated that a reference to some other provision is intended,

(b) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that a reference to some other provision is intended,

(c) a reference to any enactment or instrument made under statute is a reference to that enactment or instrument as amended, adapted or extended at any time by any enactment or instrument made under statute.

3. Orders and regulations.

3.—(1) The Minister may, with the consent of the Minister for Finance—

(a) by regulations provide, subject to the provisions of this Act, for any matter referred to in Part 2 as prescribed or to be prescribed, and

(b) in addition to any other power conferred on him or her to make regulations, make regulations generally for the purposes of, and for the purpose of giving full effect to, Part 2.

(2) Where the Minister proposes to make regulations under this section, he or she shall, before doing so, consult with such other (if any) Minister of the Government as the Minister considers appropriate having regard to the functions of that other Minister of the Government.

(3) An order or regulation under this Act (other than an order under section 1) may contain such incidental, supplementary and consequential provisions as appear to the Minister of the Government concerned to be necessary or expedient for the purposes of the order or regulation.

(4) Every order (other than an order under section 1) or regulation under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

(5) A Minister of the Government by whom an order under this Act is made may by order amend or revoke the order.

(6) In this section “Minister” means the Minister for Health and Children.

4. Expenses.

4.—(1) The expenses incurred by a Minister of the Government (other than the Minister for Finance) in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

(2) The expenses incurred by the Minister for Finance in the administration of this Act shall be paid out of moneys provided by the Oireachtas.

5. Provision of resources and extent of provision.

5.—(1) In this section—

“Minister” means a Minister of the Government;

“relevant public body”, in relation to a Minister, means a public body which provides services under this Act in relation to which that Minister allocates moneys;

“service plan”, in relation to a specified body, means a service plan or other similar document approved by the Minister to whom that body is required by an enactment to submit such a plan or document;

“specified body” means the Executive or any other public body which is not the subject of an allocation by a Minister under subsection (2).

(2) Where, in the financial year 2005 or any subsequent such year, a Minister or a relevant public body in relation to that Minister provides or arranges for the provision of services under this Act, that Minister shall, subject to subsections (4) and (5), allocate out of the moneys available to him or her for that year such amount as he or she considers appropriate for the provision of those services.

(3) Where, in the financial year 2005 or any subsequent such year, a specified body provides or arranges for the provision of services under this Act, that body shall, subject to subsections (4) and (5), allocate out of the moneys available to it for that year such amount as it considers appropriate for the provision of those services.

(4) In determining the appropriate allocation under subsection (2) or (3) in a financial year, the Minister or specified body concerned shall ensure that the amount remaining after the allocation is not less than the amount that is appropriate, having regard, inter alia, to—

(a) the extent of the Minister's or the specified body's other obligations in that year, and

(b) in the case of a specified body, its service plan for that year,

for the performance of the functions conferred on the Minister or the specified body other than by this Act.

(5) If satisfied that the amount of the moneys allocated under subsection (2) or (3) in a financial year is the maximum amount permitted by this section to be so allocated—

(a) the Minister or specified body concerned, as the case may be, shall not be required to allocate, and nothing in this Act shall be construed as requiring the allocation of, additional moneys under subsection (2) or (3) for that year, and

(b) the Minister or a relevant public body in relation to the Minister or a specified body, as the case may be, shall not be required to provide, and nothing in this Act shall be construed as requiring the provision by or on behalf of the Minister, the relevant public body or the specified body of, services under this Act in that year the cost of the provision of which could not be met out of the moneys allocated under subsection (2) or (3).

6. Review of operation of Act.

6.—The Minister shall, not later than 5 years after the commencement of this Act, carry out a review of the operation of this Act.

PART 2 Assessment of Need, Service Statements and Redress

7. Interpretation (Part 2).

7.—(1) In this Part—

“Act of 2004” means the Education for Persons with Special Educational Needs Act 2004;

“appeals board” means the Special Education Appeals Board established under section 36 of the Act of 2004;

“appeals officer” shall be construed in accordance with section 16;

“applicant” means the person who is the subject of an application;

“application” means an application under section 9 to the Executive for an assessment;

“assessment” means an assessment undertaken or arranged by the Executive to determine, in respect of a person with a disability, the health and education needs (if any) occasioned by the disability and the health services or education services (if any) required to meet those needs;

“assessment officers” shall be construed in accordance with section 8;

“assessment report” shall be construed in accordance with section 8;

“child” means a person under the age of 18 years;

“complaints officer” shall be construed in accordance with section 15;

“Council” means the National Council for Special Education;

“education service” means a service provided by a recognised school or centre for education (within the meaning in each case of the Education Act 1998) or by a person or body specified by the Minister for Education and Science who provides a programme of education, training or instruction and “education service provider” shall be construed accordingly;

“head”, in relation to an education service provider, means the person who holds or performs the functions of the office of chief executive officer (by whatever name called) of the service provider;

“health service” means a service (including a personal social service) provided by or on behalf of the Executive;

“liaison officer” shall be construed in accordance with section 11;

“Minister” means the Minister for Health and Children;

“prescribed” means prescribed by regulations made by the Minister.

(2) In the definition of “disability” in section 2, “substantial restriction” shall be construed for the purposes of this Part as meaning a restriction which—

(a) is permanent or likely to be permanent, results in a significant difficulty in communication, learning or mobility or in significantly disordered cognitive processes, and

(b) gives rise to the need for services to be provided continually to the person whether or not a child or, if the person is a child, to the need for services to be provided early in life to ameliorate the disability.

(3) References in this Part to the Council shall be construed as references to the Council with, in addition to the functions conferred by the Act of 2004, the following functions:

(a) to assist the Executive in the assessment of adults with disabilities and the preparation of service statements;

(b) to consult with the Executive, education service providers and such other persons as the Council considers appropriate for the purposes of facilitating the provision of education services to persons with disabilities in accordance with this Part;

(c) in consultation with the Minister for Education and Science and the Executive, to plan and co-ordinate the provision of education services to adults with disabilities in accordance with this Part;

(d) to assess and review the resources required in relation to educational provision for adults with disabilities.

(4) References in this Part to the appeals board shall be construed as references to the appeals board with, in addition to the functions conferred by the Act of 2004, the function of hearing and determining an appeal under section 11 (5).

8. Independent assessment of need.

8.—(1) The Executive shall authorise such and so many of its employees as it considers appropriate (referred to in this Act as “assessment officers”) to perform the functions conferred on assessment officers by this Part and every person so appointed shall hold office as an assessment officer for such period as the Executive may determine.

(2) An assessment officer shall carry out assessments of applicants or arrange for their carrying out by other employees of the Executive or by other persons with appropriate experience.

(3) Where an assessment officer is of opinion that there may be a need for an education service to be provided to an applicant, he or she shall, as soon as may be, request the Council in writing to nominate a person with appropriate expertise to assist in the carrying out of the assessment under this section in relation to the applicant and the Council shall comply with the request.

(4) An assessment officer shall be independent in the performance of his or her functions.

(5) An assessment under this section shall be carried out without regard to the cost of, or the capacity to provide, any service identified in the assessment as being appropriate to meet the needs of the applicant concerned.

(6) Where an assessment officer carries out or arranges for the carrying out of an assessment under this Part, he or she shall prepare a report in writing of the results of the assessment and shall furnish a copy of the report to the applicant, the Executive, and, if appropriate, a person referred to in section 9(2) and the chief executive officer of the Council.

(7) A report under subsection (6) (referred to in this Act as “an assessment report”) shall set out the findings of the assessment officer concerned together with determinations in relation to the following—

(a) whether the applicant has a disability,

(b) in case the determination is that the applicant has a disability—

(i) a statement of the nature and extent of the disability,

(ii) a statement of the health and education needs (if any) occasioned to the person by the disability,

(iii) a statement of the services considered appropriate by the person or persons referred to in subsection (2) to meet the needs of the applicant and the period of time ideally required by the person or persons for the provision of those services and the order of such provision,

(iv) a statement of the period within which a review of the assessment should be carried out.

(8) (a) An assessment officer may, for the purposes of carrying out an assessment of an applicant under this section, invite the applicant and, if appropriate, a person referred to in section 9(2) to meet with him or her for interview and furnish any documents or things relevant to the assessment in the possession of the applicant or person aforesaid that he or she may reasonably request and the applicant shall comply with the request.

(b) Where an applicant attends before an assessment officer pursuant to a request made to him or her under paragraph (a), the officer shall inform him or her of the purpose of the interview unless in his or her opinion the provision of such information might be prejudicial to the applicant's mental health, well-being or emotional condition or inappropriate having regard to the age of the applicant or the nature of his or her disability.

(c) An assessment officer shall—

(i) endeavour to ensure that the person or persons carrying out an assessment communicate with the applicant in a manner which facilitates appropriate participation by him or her in the assessment and promotes dialogue about the nature of the assessment and that note is taken of the views (if any) of the applicant concerning his or her needs or preferences in relation to the provision of services to meet his or her needs, and

(ii) ensure that the applicant is given adequate information relating to the process of the assessment and the results of the assessment unless in his or her opinion the provision of such information might be prejudicial to the applicant's mental health, well-being or emotional condition or inappropriate having regard to the age of the applicant or the nature of his or her disability.

(9) Where an assessment officer carries out or arranges for the carrying out of an assessment on a child and the assessment identifies the need for the provision of an education service to the child, he or she shall, in case the child is enrolled in a school, refer the matter to the principal of that school for the purposes of an assessment under section 3 of the Act of 2004 and, in any other case, refer the matter to the Council for the purposes of an assessment under section 4 of the Act of 2004.

9. Application for an assessment.

9.—(1) Where—

(a) a person (“the person”) is of opinion that he or she may have a disability, or

(b) a specified person (“the person”) is of that opinion in relation to another person and the person considers that by reason of the nature of that other person's disability or age he or she is or is likely to be unable to form such an opinion,

the person may apply to the Executive for an assessment or for an assessment in relation to a specific need or particular service identified by him or her.

(2) In subsection (1)(b), “the person” means—