Catherine Murphy (Kildare North, Independent)
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Question 129: To ask the Tánaiste and Minister for Health and Children the number of court actions regarding the provision of resources such as speech and language therapy, occupational therapy, psychological services and multi-disciplinary teams for children with special needs in which she or her predecessors have acted as respondents that are pending and which took place each year since 2002; the number of these actions which progressed to the hearing stage; the number of cases that resulted in the provision, by her Department, of the resources sought by the plaintiffs; the costs which were incurred by her Department in responding to these court actions; and if she will make a statement on the matter. [3224/06]

Tim O'Malley (Limerick East, Progressive Democrats)
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Since the late 1990s, a number of parents of children with autism began to take High Court cases to obtain specific educational services for their children. Since 2002, my Department has been involved in 74 cases in which applicants are seeking access to such appropriate education services. In cases involving children with disabilities this also includes, on occasion, access to appropriate health related supports.

These cases are broken down as follows. In 2002, there were 35 cases, 15 of which were judicial review cases and 20 plenary cases. In 2003, there were 18 cases, seven of which were judicial review cases and 11 plenary cases. In 2004, there were 12 cases, five of which were judicial review cases and seven plenary cases, and in 2005, there were nine cases, five judicial review cases and four plenary cases. In that time, three cases have proceeded to full hearing, the first in 2003 and the second during 2005. The court ruled in favour of the State on both occasions. The third case has yet to be determined. A number of other cases which commenced prior to 2002 are also being dealt with by my Department.

The cost to my Department, excluding the costs of the State defence which is borne by the Office of the Chief State Solicitor, in each of the years since 2002 was as follows. In 2002, there were no legal costs and settlements amounted to €438,450, totalling €438,450.

In 2003, legal costs amounted to €2,492,579 and settlements amounted to €297,106, totalling €2,789,685. In 2004, legal costs amounted to €1,339,660 and settlements amounted to €297,181, totalling €1,636,841. In 2005, legal costs amounted to €2,741,436 and settlements amounted to €290,987, totalling €3,032,423. It should be noted that these figures do not include the costs of staff involved in responding to these cases.

These cases are, in the main, taken against the Department of Education and Science and allege a failure on behalf of the State to provide for an appropriate education as provided for in the Constitution. While these cases are mainly taken by parents of children with autism, there are also a number of cases relating to ADHD and intellectual, physical and sensory disabilities.

The Deputy should note that the Department of Health and Children is not specifically named as a defendant in all these cases but is involved due to its role in the formulation and development of policy in respect of the provision of health care and support services. The Health Act 2004 provided for the creation of the Health Service Executive, which was established on 1 January 2005.

As the Deputy is aware, significant progress has been made in recent years regarding enhancing and developing services for people with disabilities. I am satisfied that the level of investment in disability services demonstrates that the Government is committed to the provision of appropriate services to enhance capacity within the health services to deliver on the various legislative provisions contained in the national disability strategy. This includes continued enhancements to services to allow children with disabilities participate in the education system.

Catherine Murphy (Kildare North, Independent)
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Some of the court cases probably follow on from the cases where people sought education and, having been granted it, felt the support services were insufficient. Does the Minister of State agree that planning for the provision of the support services involves a far more efficient way of spending funds than meeting the costs of litigation to deny those services? Given the figures the Minister of State has just mentioned, one can only conclude that the latter is the approach.

I received a similar reply from the Department of Education and Science to the effect that, for two years, there was in the region of €10 million in respect of one side of the court action — there may well be an overlap in the figures, which essentially implies the State was denying services to children.

Children who received primary education on foot of legal action are now presenting for second level education but the support services are not in place. Bearing in mind that there is a relationship between the Department and the Health Service Executive in terms of the provision of the required support services, it seems nobody is counting the children in question. This is a denial of their entitlement to an appropriate education.

Is the Minister satisfied that the second level children are being captured properly? It seems they are only captured properly when there is a court action. This morning I communicated with a parent whose child requires speech therapy. The family lives in Kildare where the HSE does not have services specific to children with the child's diagnosis. If the family moved to west Dublin the child would receive the required services but it does not receive them because the family is living in Kildare.

Séamus Pattison (Carlow-Kilkenny, Labour)
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The time allocated for the question has been exhausted.

Tim O'Malley (Limerick East, Progressive Democrats)
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On the Deputy's point that people who cannot avail of services would be able to avail of them if they moved to another area, this should not prevail under the Health Service Executive — it should be possible to avail of them. I will take up the specific matter if the Deputy gives me the details.

On the Deputy's point on the lack of planning, much planning is being done but the State cannot prevent anybody from taking a legal case if he is not happy with the services he is given. There is much planning associated with the provision of these services.

The Deputy is correct regarding the lack of provision of services in occupational therapy and speech and language therapy. However, we have provided increased capacity in the universities to educate people in these disciplines. Unfortunately, these people will not graduate for a few years. We are doing everything we can to try to recruit people from abroad to fill the positions in this area for which staff are unavailable in Ireland. Although everything is being done to hire more therapists, I agree there is a lack of them in the country at present.

Séamus Pattison (Carlow-Kilkenny, Labour)
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Question No. 130.

Catherine Murphy (Kildare North, Independent)
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May I ask a brief supplementary question?

Séamus Pattison (Carlow-Kilkenny, Labour)
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We have exceeded the time enormously on this question.

Catherine Murphy (Kildare North, Independent)
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It is just a very quick supplementary.

Séamus Pattison (Carlow-Kilkenny, Labour)
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We are way over the time allowed.

Catherine Murphy (Kildare North, Independent)
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I am being told the public service embargo is——

Séamus Pattison (Carlow-Kilkenny, Labour)
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Has the Deputy a question?

Catherine Murphy (Kildare North, Independent)
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Yes. The public service embargo will preclude the employment of the therapists in question unless administrators are lost.

Tim O'Malley (Limerick East, Progressive Democrats)
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The Deputy may have been told that but it is not correct. It does not apply regarding people with disabilities. The problem is that we cannot get the therapists. However, we are doing everything possible to recruit them from abroad.