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Annual Report of the Ombudsman 2008 (text version)

6.4.4 HSE Selected Cases - Three severely disabled children have HSE decisions not to grant domiciliary care allowance (DCA) revised

In May 2008 I concluded an investigation into three complaints I had received regarding the refusal of DCA by the HSE. DCA is a monthly allowance administered by the HSE. It may be paid in respect of 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.

In the first case, a girl who suffers from sickle cell disease (SCD) had been refused DCA on the grounds that she did not require care and attention considerably in excess of that normally required by a child of her age. However, the girl's older sister, who also has SCD, had been granted DCA on the basis of identical medical evidence to that provided in respect of the younger sister. I found that the decision to refuse DCA in this case was improperly discriminatory and contrary to fair or sound administration and recommended that DCA be awarded with effect from the original date of application (i.e. 5 August, 2005). I also recommended that the amount of the arrears be adjusted to compensate for loss of purchasing power.

In the second case, a boy suffering from attention deficit hyperactivity disorder (ADHD) was refused DCA because the HSE considered that his condition was a behavioural disorder, and not a disability.  It is the experience of my Office, from the examination of complaints relating to DCA, that a large number of parents of children with ADHD, in all parts of the country, apply for, and in many cases are awarded, DCA. Because DCA has been awarded in respect of other children with ADHD in other community care areas, due to their particular medical circumstances, it had to be accepted that the HSE does consider ADHD to be a disability. I found that the decision to refuse DCA in this case, taking into consideration the medical evidence available, was improperly discriminatory and contrary to fair or sound administration. I recommended that DCA be awarded with effect from the original date of application (i.e. 7 April 2004). I also recommended that the amount of the arrears be adjusted to compensate for loss of purchasing power.

The third case related to a boy who suffers from cerebral palsy. The first application for DCA had been refused in 1995 and a second, made in 2001, was also refused. I considered that the decision in respect of the boy's entitlement, did not take into account all of the relevant medical and other evidence and that the manner in which this case was handled was contrary to fair or sound administration.  I recommended that the case be reviewed by a Senior Area Medical Officer of the HSE who had not previously been involved in the case, taking into account all of the evidence available from clinicians who had treated the boy and from teachers in his school.

In addition to the recommendations that are specific to the three cases, I also recommended that the HSE undertake a review of DCA applications in respect of children diagnosed with ADHD, in the community care area involved, to determine the extent to which similar applications may have been refused. Because I had also found that there is a lack of consistency in the administration of the DCA scheme throughout the HSE nationally, I recommended that the HSE provide me with a detailed report setting out the measures it proposed to take in order to bring about consistency and understanding in the interpretation, among Senior Area Medical Officers nation-wide, of the DCA scheme.

The HSE subsequently informed me that in two of the cases in which I had recommended the award of DCA, arrears plus compensation for loss of purchasing power amounting to €15,125.05 and €22,014.04 respectively have been paid, in addition to ongoing monthly payments of €299.60 each. In the third case, the review carried out by a Senior Area Medical Officer who was not previously involved in the case, concluded that the boy was entitled to DCA, and arrears backdated to the original date of application in 1995, together with compensation for loss of purchasing power, amounting to €41,575.52 in total, was paid.

The HSE also furnished a report which contained statistics relating to 108 DCA applications involving children with ADHD that had been made in the previous 10 years in the particular community care area. According to the statistics, 31% of applications were approved at the initial application stage and, of those whose applications were refused at that stage, 47% appealed. Of those who appealed, 66% succeeded in having the original decision overturned. Out of the 108 applications made, 53% were awarded DCA, either at the initial application stage, or after appealing. These figures indicate that while a majority of applications had been initially refused and that a majority of appeals were successful, there does not appear to have been a blanket policy of refusing applications for DCA on the basis of an ADHD diagnosis.

In relation to the final recommendation relating to consistency and understanding in the interpretation of the DCA scheme, the HSE had advised me that plans were at an advanced stage for the transfer of responsibility for the administration of the DCA scheme to the Department of Social and Family Affairs during 2009. In view of the imminent transfer of these responsibilities, I accepted that no useful purpose would be served in the HSE examining ways to standardise processing and payment procedures throughout the HSE.

Since April 2009, the Department of Social and Family Affairs has assumed responsibility for new DCA applications; from 1 September 2009, it will become responsible for all DCA cases.

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