Disability Act 2005

Appeals from and enforcement of recommendations of complaints officer.

18

18.—(1) An applicant or a person referred to in section 9(2) may appeal to the appeals officer in the prescribed manner against a finding or recommendation under section 15(8) or against the non-implementation by the Executive or a head of an education service provider of a recommendation of a complaints officer and, if he or she does appeal, the appeals officer shall give the parties an opportunity to be heard by him or her and to present to him or her any evidence relevant to the appeal.

(2) The Executive or the head of an education service provider may appeal to the appeals officer in the prescribed manner against a finding or recommendation specified in paragraph (f) of section 15 (8) and, if such an appeal is brought, the appeals officer shall give the parties an opportunity to be heard by him or her and to present to him or her any evidence relevant to the appeal.

(3) Subject to subsection (4), an appeal under this section shall be initiated by a person referred to in subsection (1) or (2) within 6 weeks of the date on which the finding or recommendation to which it relates was communicated to the person, by furnishing a notice in writing in the prescribed form or in a form to the like effect to the appeals officer specifying the grounds of appeal.

(4) The period referred to in subsection (3) may be extended by the appeals officer concerned (at the request in writing of a person referred to in subsection (1) or (2)) for a further period not exceeding 12 weeks if the appeals officer is satisfied that the person has given reasonable cause for the extension.

(5) The appeals officer shall make a determination in writing in relation to the appeal affirming, varying or setting aside the finding or recommendation concerned and shall communicate the determination (including the reasons therefor) to the applicant, the Executive and, if appropriate, the head of the education service provider concerned who shall comply with the determination.

(6) The appeals officer may, for the purpose of his or her functions under this Part require a complaints officer, an assessment officer or a liaison officer of the Executive to make such further inquiries and to furnish him or her with the result of such inquiries or to furnish him or her with such further information as he or she considers necessary within such period as may be specified by him or her, and the officer shall comply with the requirement.

(7) The appeals officer may, for the purposes of an appeal under this section—

( a) require any person who, in the opinion of the appeals officer, is in possession of information, or has a record in his or her power or control, that, in the opinion of the appeals officer, is relevant to the purposes aforesaid to furnish to the appeals officer any such information or record that is in his or her possession or, as the case may be, power or control and, where appropriate, require the person to attend before him or her for that purpose, and

( b) examine and take copies in any form of, or of extracts from any record that, in the opinion of the appeals officer, is relevant to the appeal and for those purposes take possession of any such record and retain it in his or her possession for a reasonable period.

(8) The appeals officer may for the purposes of an appeal under this section enter any premises occupied by a public body or the provider of a health or education service and there—

( a) require any person found on the premises to furnish him or her with such information in the possession of the person as he or she may reasonably require for the purposes aforesaid and to make available to him or her any record in his or her power or control that, in the opinion of the appeals officer, is relevant to those purposes, and

( b) examine and take copies of, or of extracts from, any record made available to him or her as aforesaid or found on the premises and remove it from the premises and retain it in his or her possession for a reasonable period.

(9) Subject to subsection (10), no enactment or rule of law prohibiting or restricting the disclosure or communication of information shall preclude a person from furnishing to the appeals officer any such information or record, as aforesaid.

(10) A person to whom a requirement is addressed under this section shall be entitled to the same immunities and privileges as a witness in a court.

(11) Subject to the provisions of this Act, the procedure for conducting an appeal under this section shall be such as the appeals officer considers appropriate in all the circumstances of the case and, without prejudice to the foregoing, shall be as informal as is consistent with the due performance of the functions of the appeals officer.

(12) The appeals officer may, where appropriate, hold an oral hearing for the purpose of an appeal under this section.

(13) ( a) For the purposes of an oral hearing (if any) under this section, the appeals officer may—

(i) direct in writing any person whose evidence is required by him or her to attend before him or her on a date and at a time and place specified in the direction and there to give evidence and to produce any document or thing in his or her possession or control specified in the direction,

(ii) direct any such person to produce any specified document or thing in his or her possession or control,

(iii) direct in writing any person to send to the appeals officer any document or thing in his or her possession or power specified in the direction, and

(iv) give any other directions for the purpose of an appeal that appear to him or her reasonable and just.

( b) The appeals officer shall enable the applicant concerned or, where appropriate, a person referred to in section 9(2) and the Executive and, if appropriate, the head of the education service provider concerned or a person nominated by him or her and the assessment officer, liaison officer and complaints officer concerned to attend the hearing and present their case to him or her in person or through a representative.

(14) If a person gives false evidence before the appeals officer he or she shall be guilty of an offence.

(15) A witness whose evidence has been or is to be given before the appeals officer shall be entitled to the same privileges and immunities as a witness in a court.

(16) An oral hearing under this section shall be held in private.

(17) The following shall be absolutely privileged:

( a) documents of the appeals officer and documents connected with the appeals officer or his or her functions, wherever published;

( b) reports or determinations of the appeals officer, wherever published;

( c) statements made in any form at meetings or oral hearings of the appeals officer or by his or her officials and such statements wherever published subsequently.

(18) An applicant shall not be required to attend before the appeals officer under this section if, in the opinion of the appeals officer, such attendance might be prejudicial to his or her mental health, well-being or emotional condition.

(19) A person who—

( a) fails or refuses to comply with a requirement under this section or who hinders or obstructs the appeals officer in the performance of his or her functions,

( b) having been directed under subsection (13) to attend before the appeals officer, without just cause or excuse disobeys the direction,

( c) being in attendance before the appeals officer pursuant to a direction under subsection (13), refuses to take the oath on being required by the appeals officer to do so or refuses to answer any question to which the appeals officer may legally require an answer or to produce any document or thing in his or her possession or power legally required by the appeals officer to be produced by the person,

( d) without just cause or excuse disobeys a direction under subsection (13)(a), or

( e) does any other thing in relation to the proceedings before the appeals officer which, if done in relation to proceedings before a court by a witness in the court, would be contempt of that court,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or to both.

(20) Before deciding an appeal under this section the appeals officer shall consider the following:

( a) the relevant notice under subsection (3);

( b) any relevant information obtained pursuant to subsection (6), (7) or (8);

( c) the evidence presented and any representations made at an oral hearing (if any); and

( d) the matters referred to in section 11(7) .

(21) By notice in writing to the parties, the appeals officer may correct any mistake (including an omission) of a verbal or formal nature in a determination under this section.

(22) A copy of every determination of the appeals officer under this Part shall be printed and made available by the appeals officer for inspection by the public at such times and places as he or she may determine.

(23) The contents of any document which is published or made available by virtue of this section shall be protected by absolute privilege.