Introduction

Published  June 2012

A Report by the Ombudsman in relation to three complaints against the Health Service Executive (Dublin West - HSE Dublin Mid-Leinster) regarding the refusal of applications for Domiciliary Care Allowance

An investigation by the Ombudsman, under Section 4(2) of the Ombudsman Act, 1980

Contents

The Domiciliary Care Allowance (DCA) scheme was first introduced in 1973. The Allowance is payable under Section 61 of the Health Act 1970. The operation of the scheme is carried out in accordance with guidelines which are issued by the Department of Health and Children and updated periodically.

Under the heading "Criteria and Eligibility", the guidelines, (issued 1 July 2002), state:

"Domiciliary Care Allowance is a monthly allowance administered by [the Health Service Executive (HSE)] and may be paid in respect of eligible children from birth to the age of 16 who have a severe disability requiring continual or continuous care and attention which is substantially in excess of that normally required by a child of the same age. The condition must be likely to last for at least one year. Where medical confirmation is supplied which predates the actual date of application and the [HSE's] Senior Area Medical Officer is satisfied that the child required continual or continuous care and attention which is substantially in excess of that normally required by a child of the same age, then payment may be made from the date the Senior Area Medical Officer is satisfied that such care and attention was required."

The guidelines also state that DCA

"... is intended as a recognition of the additional burden involved in caring for children with severe disabilities in the child's home..."

and that

"It is a matter for the Senior Area Medical Officer or other designated medical Officer in the relevant Community Care Area to decide whether or not a child qualifies for Domiciliary Care Allowance on medical grounds."

The guidelines further state:

"Eligibility is determined primarily by reference to the degree of additional care and attention required by the child rather than to the type of disability involved, subject to the means test. While no condition is debarred, conditions such as Asthma, Diabetes or Epilepsy are not normally considered unless there is a very high degree of additional care and attention required."

Under the guidelines, the HSE is required to formally notify unsuccessful applicants of the decision and also to inform them of their right of appeal. Where an individual exercises this right of appeal, the procedures in HSE Dublin Mid-Leinster are that the appeal letter is passed on to the Senior Area Medical Officer (SAMO) who arranges for an Area Medical Officer (AMO) who was not involved in the original decision to carry out another medical assessment of the child. The case is then reviewed by the SAMO who may either change the original decision and award DCA, or uphold the decision to refuse the allowance. If the SAMO upholds the original decision, he/she then forwards the case to be considered by the Medical Review Committee, which is made up of SAMOs not involved in the original decision.

The complainants' names used in this report have been changed to protect their identities.

Complaint from Ms Sarah Nolan

Ms Nolan made her complaint to my Office on 30 June 2006

Ms Nolan applied for DCA on 5 August 2005 in respect of her daughter, Patricia (born in 2004), who has a diagnosis of Sickle Cell Disease (SCD). Ms Nolan has another daughter, Karen (born in 2001), who also has a diagnosis of  SCD, but in respect of whom DCA had been awarded following an appeal. The application in respect of Patricia was refused in December 2005 and Ms Nolan appealed this decision on 16 February, 2006. On 12 June, 2006 she was informed by the HSE that her appeal had been unsuccessful.

My Office's preliminary examination of this complaint involved the inspection of the HSE's files relating to both Patricia and Karen. The files show that Ms Nolan applied for DCA for both of her daughters on 5 August 2005. Both children were examined by an Area Medical Officer (AMO) on the same date and decisions (to refuse both applications) were made on the same date. Ms Nolan appealed both decisions in a letter dated 16 February, 2006, both children were examined by a second AMO on the same date, and the appeals were considered by the Appeals Committee on the same date. On that occasion, the Committee decided that Karen was eligible for DCA while Patricia was not.

The information on the files showed that all the information provided to the HSE (i.e. DCA applications and appeals, and the medical evidence provided by a Consultant Paediatric Haematologist, with Our Lady's Hospital for Sick Children, Crumlin (OLHSC)) was identical for both children. It was also noted that, for both girls, the AMO assessment reports and the notes prepared for the Medical Review Committee, are almost identical. From my Office's examination of the HSE files relating to both applications, it was difficult to see, based on the evidence, how one of the girls (Karen) was deemed to be medically eligible for DCA while the other (Patricia) was not. In this regard, letters from OLHSC confirmed the diagnosis of SCD for both girls, describing it as a  life-threatening disorder, and also confirmed the requirement for care and attention above what is normal for children of their age.

My Office wrote to the HSE requesting that Patricia's case be reviewed. In the letter, the similarities in the evidence upon which both cases were decided, were highlighted. The HSE was also asked to furnish a report setting out clearly the reasons why, in the case of Karen, she was deemed to be medically eligible for DCA whereas, in Patricia's case, she was deemed to be not medically eligible.

In a report responding to my Office's letter the Senior Area Medical Officer (SAMO) who reviewed the case explained that Sickle Cell crises can be life-threatening and, depending on the severity, can lead to hospitalisation. He also explained that repeated crises can lead to chronic deterioration of general health with lung, joint and kidney problems, so the severity of the disease depends on the severity of the crises and their frequency. The SAMO stated that both Patricia and Karen have the same disease but they are affected by different degrees of severity. He stated that, in Patricia's case she has only had one crisis, leading to hospitalisation, while her older sister has had several.

Having carried out a preliminary examination of this case, it seemed to me that there was prima facie evidence of maladministration in the actions of the Executive. In this regard, it appeared to me that the award of DCA in respect of Karen while, on the basis of apparently similar medical and other evidence, refusing the application in respect of Patricia may have been improperly discriminatory and contrary to fair or sound administration. Accordingly, I decided to carry out an investigation of the complaint under the provisions of  Section 4 of the Ombudsman Act, 1980.

Complaint from Ms Emer Kelly

Ms Kelly made her complaint to my Office on 2 November 2006

Ms Kelly applied for DCA on 7 April 2004 in respect of her son, Paul (born in 1997), who has a dual diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiant Disorder (ODD). The application was refused in June 2004 and Ms Kelly appealed this decision on 16 December 2005. On 17 August, 2006 she was informed by the HSE that her appeal had been unsuccessful.

My Office's preliminary examination of this complaint involved the inspection of the HSE's files relating to Paul. The file contains medical evidence which confirmed the diagnoses of the two conditions (ADHD and ODD) and also setting out how Paul is affected by these. The file also contained reports and letters from Paul's school (where he requires a Special Needs Assistant and resource teaching) outlining the difficulties they experience with Paul as a result of his diagnosed conditions and Ms Kelly had also provided details on the difficulties she experienced with Paul and the additional care and attention that he requires in the home, as a consequence.

The file shows that Ms Kelly's application was refused and that the decision was subsequently upheld in August 2005 after the case was considered by the Medical Review Committee. In December 2006, Ms Kelly submitted a further appeal against the refusal of her application. The case was reviewed in July 2006 by the SAMO who was involved in the original decision to refuse the application. In his report to the Area Administrator, the SAMO stated that

"He [Paul] has a behavioural disorder and could not be deemed to be disabled"

and

"He is not disabled let alone severely disabled. Although he requires a good deal of extra attention from his parents to manage his difficult behaviour he does not require extra care and attention in the context of disability".

It appeared to my Office that it was the opinion of the SAMO that Paul's diagnosed condition, ADHD, was not a disability and, therefore, he was not medically eligible for DCA. However, it is the experience of my Office that a very large number of parents of children with ADHD (in all parts of the country) apply for DCA and, in many cases, these are successful, thus indicating that other SAMOs do consider ADHD to be a disability.

Having carried out a preliminary examination of this case, it seemed to me that there was prima facie evidence of maladministration in the actions of the Executive. In this regard, it appeared to me that the refusal of DCA on the grounds that the SAMO involved in this case considered ADHD not to be a disability, whereas, by virtue of the fact that DCA is paid in respect of very many other children with ADHD, SAMOs in other areas of the HSE do consider the condition to be a disability for the purposes of the DCA scheme, may have been improperly discriminatory and contrary to fair or sound administration. Accordingly, I decided to carry out an investigation of the complaint under the provisions of  Section 4 of the Ombudsman Act, 1980

Complaint from Ms Geraldine Smith

In November, 2002, a Mental Health Social Worker attached to the former South Western Area Health Board wrote to my Office on Ms Smith's behalf requesting that I examine her case.

Ms Smith first applied for DCA on 15 March 1995 in respect of her son, Matthew (born in 1991), who has Cerebral Palsy. That application was refused in September 1995. Ms Smith made another application for DCA in November 2001. This application was also refused and she made an appeal in April 2002. On 4 November, 2002 she was informed by the HSE that her appeal had been unsuccessful.

My Office's preliminary examination of this complaint involved the inspection of the HSE's files relating to Matthew. Also, on a number of occasions during the course of the examination of this complaint, my Office obtained medical and other evidence which had not previously been seen or considered by the HSE and this was forwarded to the HSE with requests for Matthew's case to be reviewed. On each occasion, I was informed that there was no new information in relation to Matthew's condition that was not already documented on his file.

The HSE file contains medical evidence which confirms that Matthew suffers from Cerebral Palsy with left hemiplegia (meaning that the left side of his brain was affected), and also that he suffers from epilepsy, migraine, and has ongoing back, leg and arm problems. Matthew has attended a range of health service providers for his condition over the years (including occupational therapy and physiotherapy) at the Central Remedial Clinic (CRC), Our Lady's Hospital for Sick Children, Crumlin (OLHSC), Tallaght Hospital and Cappagh Hospital. In the original complaint to my Office the Social Worker who made the complaint on Ms Smith's behalf stated that Matthew's mother had to massage his back and legs twice each day to relieve the pain and swelling, and to bath him regularly to relieve his symptoms. She said that Matthew's mother was often called to the school to collect him as he was in so much discomfort and also that he suffered frequent falls due to his balance being poor, and required substantial assistance during the school day to help him cope. The examination of the HSE file shows that evidence exists to confirm all of this.

Medical evidence to support Ms Smith's application was submitted by a Consultant Paediatrician with the CRC and a Consultant Neurologist with OLHSC. In one report from the Consultant Paediatrician, which was provided to the HSE by my Office, it was reported that

"to the inexperienced eye [Matthew's condition] may not appear to be as significant and as disabling as it actually is for him. He requires significantly more care and attention than peers of his age without his condition.".

Other supporting evidence was provided by a Social Worker with CRC, the Resource Teacher to Matthew, and his Special Needs Assistant at school. In the course of correspondence between my Office and the HSE requesting that Matthew's case be reviewed, my Office asked the HSE medical officers to contact the child's consultants and his school with a view to establishing how his condition impacted on him, and to determine the actual level of care and attention he required. It appears that this was never done.

Having carried out a preliminary examination of this case, it seemed to me that there was prima facie evidence of maladministration in the actions of the Executive. In this regard, I noted the strong medical and other evidence from Matthew's consultants, from his teachers at school and from Social Workers which demonstrated that Matthew required a substantially greater level of care and attention than another child of the same age. It appeared to me that the decision taken by the HSE to refuse Ms Smith's application for DCA in respect of her son, may have been improperly discriminatory, and contrary to fair or sound administration. Accordingly, I decided to carry out an investigation of the complaint under the provisions of  Section 4 of the Ombudsman Act, 1980.
 

Under the Ombudsman Act 1980, as amended, I am not permitted to investigate complaints about medical practitioners who are "acting on behalf of [the Health Service Executive] and (in the opinion of the Ombudsman) solely in the exercise of clinical judgement in connection with the diagnosis of illness or the care or treatment of a patient ...". I am satisfied that this provision does not affect my authority to investigate complaints about the actions of the HSEs Medical Officers who are involved in the decision making processes on applications for Domiciliary Care Allowance (DCA). In this regard, the actual diagnosis of the condition that a child has, is not made by these Medical Officers: generally, such a diagnosis is made by another qualified medical practitioner, for example a hospital consultant or a consultant psychologist. Similarly, while the professional care or treatment may be provided by the HSE, for example in hospitals or clinics, the Medical Officers who are involved in the decision making processes on applications for DCA, are not involved in the provision of that care or treatment.

My role, as Ombudsman, in relation to complaints about DCA applications is to ensure that each case is accorded appropriate consideration, taking all the relevant factors into consideration, including all relevant medical, or other, evidence.  In this regard, I seek to ensure that the material relied upon by decision makers is capable of supporting that decision, and that in exercising decision making powers they act in a reasonable manner.

In accordance with the established investigation procedures, my Office wrote to the HSE enclosing Statements of Complaint in which the background to each complaint was set out. The HSE was invited to make any further comments in relation to these matters, in addition to the material it had already furnished to my Office.

Response by the Health Service Executive

In the cases of the complaints from Ms Nolan and Ms Kelly, the HSE responded to the effect that it had no further information to be forwarded.

In the case of Ms Smith's complaint the HSE responded that the original decision in the case was based on the evidence available at the time and that an appeal of that decision was heard by the Medical Review Committee in 2006. The HSE also advised that, having considered the matter again, in light of correspondence from my Office, it had taken the view that, in the absence of any new information it had no further comment to make in relation to Matthew's DCA entitlement.

While all of the cases which are the subject of this investigation relate to applications for DCA to the same Community Care Area of the HSE (Dublin West (HSE Dublin Mid-Leinster)), the details in each individual case differ considerably.
 

Complaint from Ms Sarah Nolan

The central issue in this case is whether Patricia Nolan meets the requirements set out in the Department of Health and Children guidelines of being in need of continual or continuous care and attention which is substantially in excess of that normally required by a child of the same age. In support of her application for DCA, Ms Nolan furnished two reports from the Consultant Paediatric Haematologist, Our Lady's Hospital for Sick Children, Crumlin. These letters, which describe SCD as

"a  life-threatening red cell disorder",

set out, in detail, the potential affects of the disease, Sickle Cell Crises, and the circumstances and conditions that can bring these on. The letters also highlight the need for the children

"to be constantly monitored and brought to hospital should any warning signs be present"

It is noted that neither of these reports, which were considered in the applications for both girls, differentiates between the condition of the girls and also that they clearly indicate that both girls need the same level of additional care and attention. There is nothing in these reports to suggest that, because one of the girls has had to be admitted to hospital more frequently than the other, her condition is therefore, more severe. Rather, it appears to me that this would indicate that there is constant monitoring of both children by their mother as she identifies the need to bring either child to hospital when necessary. In addition, it appears to me that, the fact that one of the children has attended hospital more frequently, does not mean that the level of care and attention provided by the mother in the home to the other child is any less. In this regard, it is noted that in one of Consultant Paediatric Haematologist's letters it was stated that

"It is only because of the care and attention given by their mum that they have not had more admissions than they have already had" - again this relates to both girls.

The medical evidence available to the SAMO, including the reports from the Consultant Paediatric Haematologist with OLHSC and those compiled by the Area Medical Officers (AMO), is very similar in relation to both girls - the differences in the AMO reports appear to relate only the fact that one attended hospital more than the other. The reports by the Consultant Paediatric Haematologist were prepared in her capacity as a hospital consultant specialising in the area of paediatric haematology and, therefore, her opinions on the nature and severity of the girls' diagnosed conditions and the consequential requirement for excess care and attention must be seen to carry considerable authority. However, there is no indication that the SAMO had sought advice from another person with specialist training or qualification in the area of paediatric haematology in order to assist him in making an informed decision.

There is no dispute regarding the actual diagnosis of Sickle Cell Disease for both girls. In relation to the severity of the disease, the reports provided by the hospital consultant specialising in the area of paediatric haematology, do not make any distinction between the girls to suggest that one is more severely disabled than the other and, similarly, these reports indicate that both girls require equal levels of care and attention which is

"well above that of a normal child of the same age".

On the basis of the medical and other evidence available in this case, and in particular that provided by the Consultant Paediatric Haematologist, I consider the decisions to award DCA in respect of one of the girls, Karen, while at the same time refusing it in respect of the other, Patricia, to be inconsistent.

Complaint from Ms Emer Kelly

In this case the evidence suggests that the original application was turned down because the SAMO considers ADHD to be a behavioural disorder, and not a disability. The opinion expressed by the SAMO in this case is similar to an opinion the same SAMO (acting in his capacity as Chair of the Medical Review Committee) had expressed to my office in another case. In that case the SAMO wrote the following:

"The Domiciliary Care Allowance is administered in respect of children who have a severe disability. Disability is the long-term consequence of injury, congenital abnormality or chronic physical or mental disease which interferes with a persons ability to carry out every day activity of living. Care in the context of disability is the assistance given in relation to these activities where the disabled person is unable to carry them out or needs help to carry them out. ....... has Attention Deficit & Hyperactivity Disorder. This is a behavioural disorder. .... Children with ADHD may demand a lot more supervision than normal children but they do not require care in the context of disability ...."

(In the earlier case, while my Office's examination of the complaint was ongoing, the child's mother made another application for DCA (with the diagnosis still ADHD) which was considered by a different SAMO who approved it and DCA was awarded. In view of the later successful application, which accepted ADHD to be a disability, the Appeals Officer, at the request of my Office, granted full retrospective payment.)

The SAMO's opinion that ADHD is not a disability appears to be contrary to DCA guidelines issued by the Department of Health and Children which state that

" ... no condition is debarred ..."

and that

"eligibility is determined primarily by reference to the degree of additional care and attention required by the child rather than to the type of disability involved ...".

In this case, and the earlier case, the SAMO appears to be of the opinion that the condition, ADHD, is debarred and he also appears to be using definitions for "disability" and "care" which are not prescribed in the Circular which established the DCA scheme or in any subsequent guidelines issued by the Department of Health and Children.

It is the experience of my Office, from the examination of complaints relating to DCA applications, that a large number of parents of children with ADHD (in all parts of the country) apply for DCA. Some of these are successful while others are unsuccessful. However, it is also the experience of my Office that, in a majority of unsuccessful cases, the common grounds for the refusal of applications are that the children do not require a level of continual or continuous additional care and attention that is in excess of that required by another child of the same age. The fact that DCA has been awarded in respect of other children with ADHD indicates that, in other Community Care areas, the SAMOs involved in the decision making processes do consider ADHD to be a disability. When the HSE was established, one of its stated objectives was to ensure consistency in the provision of services through the country. Given the apparent inconsistency in how medical officers in different Community Care Areas categorise ADHD, and the obvious negative consequences for people like Ms Kelly, the indications are that, in relation to DCA, this objective has not yet been achieved.

In his report to the Area Administrator, the SAMO also referred to a confidential psychological assessment of Paul by the National Educational Psychological Service (NEPS). In his report the SAMO stated that

"the NEP report essentially places his intellectual appetite in the normal range although he was found to have specific learning difficulties (erroneously referred to in the report as specific learning disability). These difficulties are amenable to resolution through the education system".

The psychological assessment to which the SAMO referred was prepared primarily for education purposes - the very first line states

"Paul was referred because of continuing concerns regarding his behaviour and school performance"

and all the recommendations in the report are directed at his education providers. It is clear from the report that it is not intended to be a comprehensive psychological assessment of the child : it is an assessment of his educational needs. While the SAMO has relied on the NEPS report which places Paul's intellectual appetite in the normal range, he did not refer to an AMO report dated 29 April 2005 in which it was reported that, according to Paul's Learning Support Teacher, he was

"average IQ but falling behind because of his behaviour"

and that, according to his Special Needs Assistant, he was

"making a reasonable amount of educational progress but his behaviour is affecting his overall ability to learn and his behaviour in class is at times affecting other pupils in the class ... ".

The question of the level of Paul's intellectual functioning is not relevant in this case and it had been recorded previously that he was believed to be of average IQ. In this case, the stated disability, at the time of the application for DCA, was ADHD.

As provided for in DCA guidelines issued by the Department of Health and Children, the allowance is intended as a recognition of the additional burden involved in caring for children with a severe disability in the child's home. The HSE file, which contains all of the evidence upon which the decision in this case was made, contains evidence of the diagnosis of severe ADHD and ODD by a Consultant Child Psychiatrist with the HSE's Child and Family Centre, Ballyfermot (and Professor Child & Adolescent Psychiatry). The file also contains a large amount of information from the Consultant Child Psychiatrist, Paul's school, Paul's mother and AMOs about the many problems that exist as a result of his condition and also about the level of care and attention he requires as a consequence. It is noted that, in his report to the Area Administrator, the SAMO stated

"Although [Paul] requires a good deal of extra attention from his parents to manage his difficult behaviour, he does not require extra care and attention in the context of disability.".

If ADHD was to be accepted to be a disability, as it is accepted by SAMOs in other HSE areas, then the above statement by the SAMO would to my mind, clearly suggest that Paul should qualify for DCA.

Complaint from Ms Geraldine Smith

Throughout the course of my examination of this case, the SAMO consistently held the view that Matthew's disability was not severe and that he, therefore, was not medically eligible for DCA. In this connection, there is a record on the HSE file which shows that, in July, 2002, an Area Medical Officer (AMO) wrote to Matthew's Consultant Paediatrician attached to the Central Remedial Clinic, in relation to his condition. In that letter the AMO referred to an earlier report from the Consultant Paediatrician which mentioned that she was to arrange a further test (gait analysis) for Matthew in the near future and the AMO requested her to forward a report on the findings to facilitate a decision being made on the DCA application. In her reply dated 10 July, 2002, the Consultant Paediatrician advised the AMO that she did not feel that the outcome of the gait analysis would have any bearing on whether or not Matthew was eligible for DCA. She further advised that Matthew has a

"significant permanent disability and requires considerably more care and attention than a child of his age without it, and I therefore feel he meets the criteria for the Domiciliary Care Allowance.".

In December 2003, Matthew's Consultant Paediatrician said that

"to the inexperienced eye [Matthew's condition] may not appear to be as significant and as disabling as it actually is for him. He requires significantly more care and attention than peers of his age without his condition.".

There is no evidence that the SAMO had sought advice from another person with specialist paediatric training or qualifications to assist him in making an informed decision in Matthew's case. This would have been incumbent on the SAMO given the clearcut conclusion from the consultant dealing directly with the child regarding the level of his disability. When my Office requested that the HSE contact the Consultant Paediatrician and Matthew's  Consultant Neurologist, to ascertain how Matthew's condition actually impacted on him, and the care and attention he required, it failed to do so.

According to the HSE file, Matthew had been examined by AMOs (i.e. HSE doctors) on three occasions; once in relation to the 1995 application and twice in 2002 in relation to the later application and subsequent appeal. The AMO reports, particularly those from 2002, are very comprehensive and contain Matthew's medical and developmental history, the findings of physical examinations of him and, crucially, comprehensive details of the extra care and attention that he requires. However, it is noted that neither of these doctors had expressed their own professional opinions as to whether they considered Matthew to be medically eligible for DCA, to assist the SAMO in making an informed decision, and both reports conclude with notations that the case had been discussed at an AMO meeting and that Matthew had been deemed not medically eligible.

In the course of my investigation of this case, I reviewed a set of guidelines that have been prepared and implemented in the former Southern Health Board area since May 2004. The guidelines were prepared by a task group comprising SAMO's, AMO's and senior administrative staff from the SHB. Contributions were also made by various other professionals and service providers. Essentially, the guidelines were designed to ensure consistency in the handling of DCA applications and, in this regard, they provide guidance to all those involved in the decision making process. [In the introduction to the Guidelines it was noted that the recommendations of the task group were to form an interim response to the administration of the DCA scheme pending the reporting of the Medical Review Group at National level. It was the group's view that their document - the Guidelines - should be forwarded to the National Group to be taken into account during their deliberations]

I noted that in one particular section of the guidelines entitled "The Medical Assessment - Role of the AMO", AMO's are required to complete a very comprehensive standard medical assessment form, which includes details of the extra care and attention or supervision. The guidelines also require that

"On completion of the medical assessment the AMO recommends or does not recommend DCA for the applicant ...".

It appears to me that if the AMOs in this case had included, in their written reports, their professional opinion as to whether Matthew was entitled to DCA or not, and outlined their rationale for that opinion, then the reasons behind the decision to refuse Matthew's application may have been more obvious. As things stand, when decisions were made in Matthew's case, no individual doctor (AMO or SAMO) had actually recorded such an opinion on the HSE file, and neither was the rationale for the decision outlined.

As mentioned earlier, on a number of occasions during the course of the examination of this complaint (i.e. almost 5 years), my Office obtained medical and other evidence which had not previously been seen or considered by the HSE. This was forwarded to the HSE with requests for Matthew's case to be reviewed and, on each occasion, I was informed that there was no new information in relation to Matthew's condition that was not already documented on his file. In all that time, the HSE had never considered the question as to whether it would be appropriate for Matthew to be medically re-assessed. Instead, the SAMO, who had been involved in the case throughout, and who never actually met or physically examined Matthew, considered each additional piece of evidence individually and determined that it did not impact on the original decision.

Having reviewed all of the evidence that has been provided to the HSE since Matthew's mother first applied for DCA, including that contained in the various AMO reports, it appears to me that there is evidence that Matthew has a severe disability (see paragraphs 5.3.2. and 5.3.5). There is overwhelming evidence that, as a result of that disability, he has required and

Complaint from Ms Sarah Nolan

The decision to refuse DCA in respect of Patricia Nolan, was improperly discriminatory and contrary to fair or sound administration because the allowance had been awarded to her sister, Karen, on the basis of identical medical and other evidence.

Complaint from Ms Emer Kelly

The opinion of the Senior Area Medical Officer that Paul Kelly's diagnosed condition, ADHD, is not a disability is not in accordance with the DCA Guidelines issued by the Department of Health and Children, which provides that ... no condition is debarred ..." and that "eligibility is determined primarily by reference to the degree of additional care and attention required by the child rather than to the type of disability involved ...", and consequently the decision to refuse the application for DCA on these grounds was improperly discriminatory and contrary to fair or sound administration. Furthermore, the fact that DCA has been awarded in respect of other children with ADHD indicates that, in other Community Care areas, the SAMOs involved in the decision making processes do consider ADHD to be a disability.

Complaint from Ms Geraldine Smith

The decision to refuse DCA in respect of Matthew Smith was contrary to fair or sound administration on the basis that :-

(i)    there is a conflict of medical evidence whereby a Consultant Paediatrician involved in his care and treatment for many years, said that he has a significant permanent disability, whereas the SAMO said that he was not severely disabled in the context of DCA. I had made suggestions as to how the case might be moved forward, however, these suggestions were not acted on by the HSE, and

(ii)    there was overwhelming evidence, from many sources including his mother, medical consultants, Area Medical Officers, a Social Worker, Matthew's School Principal, Resource Teacher and Special Needs Assistant, that, as a result of his disability, he has required and continues to require a significantly higher level of care and attention than another child of his age

General

There is a lack of consistency in the administration of the DCA scheme throughout the HSE nationally which is demonstrated, for example, by the fact that AMOs in the Dublin West - HSE Dublin Mid-Leinster area, all of whom are qualified medical practitioners, do not formally record their opinion as to eligibility to DCA after they have medically assessed a child, whereas under the guidelines prepared by the former SHB, Area Medical Officers in that area were required, having completed a standard medical assessment form, to recommend or not to recommend DCA for the applicant.

Footnote to Findings

In advance of finalising my recommendations in respect of this investigation, I sent a draft of this report which included draft findings, to the HSE to afford it an opportunity to make any observations it wished to make on the contents.

When I received the HSE's reply, I was very pleased to note that it accepted the findings contained in the draft report and that it also acknowledged the needs to ensure consistency and understanding in the application of the Department of Health and Children's guidelines in the operation of the DCA scheme

I recommend that:

  • In the case of Patricia Nolan, Domiciliary Care Allowance be awarded with effect from the date of application (i.e. 5 August, 2005), adjusted to compensate for loss of purchasing power.
  • In the case of Paul Kelly, Domiciliary Care Allowance be awarded with effect from the date of application (i.e. 7 April 2004), adjusted to compensate for loss of purchasing power.
  • In the case of Matthew Smith, a review of his case be undertaken, by a Senior Area Medical Officer, who had not previously been involved in the case, in respect of his entitlement to Domiciliary Care Allowance, taking all of the existing medical and other evidence into account and, if appropriate, any new evidence available from clinicians who have treated Matthew and from teachers in his school. I further recommend that the HSE communicate the outcome of this review to my Office within two months of the date of this report.
  • A review of Domiciliary Care Allowance applications in respect of children diagnosed with ADHD, to this particular Community Care Area, be undertaken to determine the extent to which similar applications may have been refused because the diagnosed condition was deemed not to be a disability. Any such applications identified should be reviewed by a Senior Area Medical Officer who had not previously been involved in the cases, to ensure that entitlement is considered in accordance with the DCA Guidelines issued by the Department of Health and Children. I further recommend that the HSE communicate the outcome of this review to my Office within four months of the date of this report.
  • Within four months of the date of this report, the HSE provides my Office with a detailed report setting out the measures it proposes to take in order to bring about consistency and understanding in the interpretation, among Senior Area Medical  Officers nationwide, of the Domiciliary Care Allowance scheme.

The Health Service Executive's Response to the Investigation Report

The HSE accepted, in full, the findings and recommendations made in the investigation report

Emily O'Reilly
Ombudsman
May, 2008