In the Dublin District Court a judge refused a Section 47 application brought by two foster parents seeking a direction for funding for orthodontic treatment that their foster child had commenced. The Child and Family Agency (CFA) contested the application.
In her decision the judge told the parents that it was not open to the District Court to make a direction on funding and that the obligation of the executive [the CFA] was to determine how funding is spent. She said it was with regret that she was refusing the application and congratulated the foster parents on the extent of their advocacy and care for their foster child which was also found to be exemplary by the CFA.
The hearing
The solicitor for the CFA told the court that the teenager (Child B) did not meet the HSE criteria for orthodontic work and that this was a matter for the government, not the CFA. She told the judge that Section 47 of the Child Care Act had to be interpreted in a constitutional manner as consideration must also be given to what were the reasonable obligations of the CFA. The CFA solicitor said that the CFA had placed B in the care of the foster parents and the fostering allowance was sufficient to cover his orthodontic work.
The fostering allowance was €352 per week which was €18,304 per annum and not taxable. This payment was for the benefit of B and not a payment for the foster carer. “Presumably it’s to cover the cost the foster carer can incur in relation to [the child],” asked the judge. The solicitor confirmed it was.
The solicitor for the foster parents contended that the decision not to fund B’s orthodontic treatment was a budgetary decision and not a welfare decision. He asked the court to make a best interests decision. He told the court that the foster parents cared for B and two of his siblings, all of whom had special needs. However under law the CFA was the parent and should therefore pay for the treatment.
He told the court that the foster mother had pursued private orthodontic treatment for her foster son on the basis that it was fully supported by an arm of the CFA and that furthermore the details of the orthodontist had been given to her by a member of the social work department. The solicitor said that he was not inviting the court to make an order that would have a binding effect on every child regardless of the circumstances but instead he was asking the court to look at the individual needs of the individual child.
The foster mother told the court that Child B had been placed in their care when he was two years old and she was also caring for two of his siblings one of whom had cerebral palsy. “We are so dedicated, their needs come first to us,” she told the court. She said that Child B had been distressed about his teeth sticking out and was being “slagged at school”, he had become very self-conscious and was inclined to put his hand up to his face. They did not want him growing up covering his mouth all the time so they had sought guidance from the local health centre.
They were advised that they would have to wait a certain time before they could get him assessed and then he would be put on a waiting list. Therefore they had B assessed privately and were told that early intervention would cost less. The foster mother said that they provided the quote to the social work department so they could put it in for funding and they were not told to stop because it would have to be paid for by them.
The total predicted cost was €4,750 and so far the foster family had paid €1,750. The foster family felt that the cost should not be met by them and were therefore requesting the court’s direction regarding completion of the treatment. The foster mother told the court that it was never communicated to her before the treatment started that they would have to bear the cost. Once the treatment had commenced they were then told they would not get funding. The foster parents did not feel that their contract related to paying for orthodontic treatments.
Child B was a young boy who had suffered a lot of trauma in his very young life and they wanted to give him a stable, loving home and the best start in life, the foster mother told the court. They had had two private orthodontic assessments for B which concurred that he needed the treatment and recommended early intervention.
CFA solicitor: “You referred [Child B] to [the second private orthodontist] in early 2014. At that stage I understand, and the social work team leader will give evidence, that a decision had been made that the CFA would not pay for private treatment?”
Foster mother: “We were not told at that time, we don’t have anything in writing.”
CFA solicitor: “Were you aware at the commencement of the treatment?”
Foster mother: “No.”
CFA solicitor: “I think you had a consultation with the second private orthodontist in [early] 2014 and that the treatment commenced in [mid] 2014. At that time were you aware that it would not be funded?”
Foster mother: “We were never told we wouldn’t get the money for it and we were never told we would have to pay for it out of our fostering allowance.”
She told the court they had asked the Ombudsman for clarification on the issue before the treatment started in early 2014 but they had not been told that the CFA would not pay for the treatment at that point.
CFA solicitor: “But when you made a referral to the Ombudsman, you had a feeling they [the CFA] would not pay?”
Foster mother: “Yes, I had a feeling.”
CFA solicitor: “He is in the middle of his treatment now and you have paid for the treatment to date and that treatment will continue, regardless of the outcome today?”
Foster mother: “Yes, because it’s in [B’s] best interests.”
CFA solicitor: “You object to the fact you are being asked to pay because it is not specifically
referred to in the guidance note?”
Foster mother: “Well it’s an extraordinary expense, €5,000 is extraordinary.”
The CFA solicitor told the foster mother that during the treatment plan of 30 months they would receive approximately €45,000 from the CFA. The foster mother pointed out that he had other needs as well and that this was an extraordinary expense. “We shouldn’t have to pay for this treatment. Everything we do is in [B’s] best interests, he’s the number one person here,” said the foster mother.
She told the judge that they first identified the need for B’s treatment in 2012 and that the first orthodontic assessment had scared her because the dentist had said it was an urgent case. They had hoped to go the public route but others with lesser needs were ahead of B. She said they were first informed by the social work department that they would not receive funding mid-2014, but that it was the only thing they did not have in writing.
Principal dentist of the HSE
The principal dentist of the HSE told the court that the HSE provided orthodontic services to children in Ireland who had met the threshold for provision of services. She said that children were assessed in the school assessment system and that there was a threshold for the provision of service. If a child met that threshold she would be referred to the orthodontic treatment unit and put on the waiting list. The assessment standards had been nationalised in 2007 under the standardisation tool – the Index of Orthodontic Treatment Need (IOTN).
If a child did not meet the criteria they were advised the treatment would not be provided.
“Are exceptions made for children in care?” asked the solicitor for the CFA.
“They don’t have to wait on a list if they meet the criteria,” replied the principal dentist. In B’s case he was assessed but he did not meet the criteria and they did not have a concern that in the long term he would need jaw surgery (as indicated by the private assessment in January 2014 by Dr [C] who contended B met the 4F category, the trigger for intervention).
A review of B’s pre-treatment records was carried out and once again he did not meet the criteria for 4F.
Principal Dentist: “In order to meet 4F you must have the lower teeth biting on the soft tissue of the palate. [B’s] actual bite is on the upper teeth.” The issue was that B perceived his teeth were sticking out.
Judge: “Do you believe a failure to provide orthodontic treatment to [B] would impact on is health?”
Principal dentist: “Not on his dental health.”
Judge: “And on other areas of his health?”
Principal dentist: “Their perception of need can be different, we don’t take that or desire into account.”
Judge: “If a child was suffering from severe emotional difficulties can an exception be made?”
Principal dentist: “We would need to have some level of documentation of that.”
The dentist told the court that in a 14 year period she had only come across one case where a child was suffering from severe emotional difficulties and an exception had therefore been made. In that particular case the child had not met the criteria but was self-harming and this was linked to her teeth, a psychologist’s report had been submitted and the consultant then provided the treatment.
There was an appeals process in place, said the dentist, but no formal appeal had been made in B’s case.
She told the solicitor for the parents that it was a cosmetic case, that “clinically he would be cosmetically enhanced by the treatment.”
The principal dentist said that she did not have sight of B’s care file when the decision was made about him and that a parent would normally raise that issue when the assessment was being done.
Parents’ solicitor: “Are there guidelines for parents?”
Principal dentist: “There are no guidelines.”
Parents’ solicitor: “There is nothing to suggest you should bring additional evidence to the assessment meeting.”
The dentist told the court that they had had no communications with the social work department.
Parents’ solicitor: “Did his file include any added information around his other care needs?
Principal dentist: “We had no communications with the social work department – that would be highly unusual, unless there was a reason for that information to be provided.” They would be made aware if a child is in care but they never request the files.
“We were quite happy he was attending with his mother, no additional exceptional circumstances were raised at the time by anybody. The CFA didn’t provide any reports at any stage. All additional information was clinical dental information.”
The dentist told the court that she thought Dr C (the second dentist who had provided a private assessment) had enhanced his assessment slightly. “We would receive letters that are enhanced slightly to try and ensure we would change decisions.”
The judge asked her if the work done on B’s teeth was necessary.
Principal dentist: “It’s very difficult to say it’s absolutely necessary to have teeth straightened, he could live quite happily without having it done, I have had children coming in who had less crowded teeth and were absolutely adamant they wanted it done.”
Judge: “How would it affect his appearance?”
Principal dentist: “If you have slight discrepancies they will worsen with time, in his case, more overlapped with time, but functionally he won’t change that much, the cut-off point is quite high for our cases. He can function quite happily.”
Judge: “But he will stand out in his class.”
Principal dentist: “Unfortunately it is one of the things that children pick on.”
Judge: “He is complaining that his incisors stick out [as well].”
Principal dentist: “Twenty years ago that would have been a normal range, now it’s not.”
Social work team leader
The social work team leader told the court that orthodontic work for B was discussed at a statutory review in early 2013 and it was the opinion of those in the social work department that is should be paid for with the fostering allowance. They had received a letter from the guardian ad litem requesting funding and had sent a reply outlining their position. Furthermore in early 2013 the team leader had met the foster mother and told her that she was in agreement with the social work department’s position. Then at the care order review later that month the issue was also discussed. She also reiterated this position twice in late 2013.
The team leader told the court that the foster mother had been anxious because the private dentist the family had found was looking for the total payment for the orthodontic work upfront. It was in that context that she had given the mother the information about Dr C because he accepted instalments payments.
She told the court that these were extremely committed foster parents and that all of their foster children had needs. The social work department had put up some funding requests in 2012 and 2013 for €750 for the orthodontic work in order to support the foster parents, even though their stated position was it should come from the allowance. However the funding requests were not granted by the area manager.
Team leader: “It is the position of the social work department that the orthodontic work would be paid from the fostering allowance, there is discretion for further payments.” The department had given one such payment of €3,000 euros for a specialised car seat for one of their foster children.
CFA solicitor: “Were they notified of the outcome of the requests?”
Team leader: “The allocated social worker made contact by telephone and informed her. There wasn’t a written refusal for the funding.” In order to give the foster mother the decision not to fund in writing, she herself would have to put in a written request to the social work department.
The team leader told the court that there were guidelines on how the fostering allowance should be spent to meet children’s needs. It was not an exhaustive list and orthodontic work did not appear on it. “The view is that it is not an exceptional payment, other children are in the same situation – and their parents have to pay, or their foster parents.”
CFA solicitor: “Do you think the fostering allowance allows for that kind of care planning?”
Team leader: “Yes. It needs to be managed to meet the child’s needs throughout the child’s life.”
CFA solicitor: “There are greater expenses for some children?”
Team leader: “We would ask the foster parents to anticipate the expenses, if they were aware of the problem for a number of years, that they would manage the fostering allowance.”
The team leader was satisfied that the family were aware of the decision to refuse funding for the orthodontic work and there had been a number of discussions where it was raised. She was completely satisfied that the foster mother was aware that this expense should be funded from the fostering allowance before B commenced his treatment. It was the department’s position that the orthodontic work was in his best interests but that the fostering allowance was sufficient to pay for it.
The team leader told the parents’ solicitor that she had made three funding requests altogether. She said that the principal social worker had corresponded to the Ombudsman with regard to the complaint sent to them by the foster mother.
Parents’ solicitor: “Do you accept the evidence that was given that there was no information forthcoming relating to this child to the dental service?”
The team leader told the court that the social worker had had a telephone discussion with the principal dentist, she had been looking for “information from the principal dentist to see if there could be an exception”.
Judge: “The dentist said she received no exceptional submissions or case made by the CFA, that there was no special pleading in [B’s] case.”
The parents’ solicitor read out a letter from the principal dentist from late 2013: “’As I explained on the phone, while there is a category for consideration of children in care of the HSE …[B] is not borderline at present, the issue he has is predominantly cosmetic which can be corrected in adulthood.’”
Parents’ solicitor: “His dental needs were such that you clearly then thought it necessary to go back to the HSE to seek further information?”
Team leader: “We were clarifying we had done all the pieces we should do, that was why the social worker rang about the exceptional needs aspect and following that they [the team leader and the social worker] made a decision it was not appropriate to make a submission for [B’s] dental treatment.”
Parents’ solicitor: “You accepted in evidence today that it is appropriate that B receive this treatment, you provided the contact details [of Dr C to the foster mother], you have seen the reports of the other orthodontists, your only difficulty is that it should be dealt with under the fostering allowance payment. Your department are [B’s] parents in law by virtue of the section 18 order and you referred also to [B’s] upset. Why in those circumstances did you not seek to make representations on behalf of the CFA to the HSE under this particular heading?”
Team leader: “Because the dentist said she had only come across one other case, the situation [B] was in was not the same situation, we felt that the information we had been given was that he wouldn’t fall within the criteria so we didn’t pursue it.”
Parents’ solicitor: “Are you telling the court that one has to be self-harming before one is successful, is the threshold that high?”
Team leader: “The principal dentist can give the evidence in relation to that.”
Parents’ solicitor: “But you made the decision not to pursue it. On the basis of your conversation with the dentist, because only once in 14 years had it been successful when a child was self-harming as a result, is that what you were told? Is that your understanding, the threshold was that high, any such application would be doomed to fail? What is your understanding of the criteria of exceptional circumstances?”
The team leader said that she had not had sight of the criteria. The parents’ solicitor pointed out that she had made her decision without having sight of the criteria in what was a hugely complex case.
The parents’ solicitor addressed the foster care allowance and the assertion by the social work department that it should be used to cover the orthodontic work. He read out the guidelines for the “purpose and use of the allowance”, developed and approved in March 2013.
Parents’ solicitor: “The purpose and use of the allowance should be in respect of and for the benefit of the foster child and therefore should meet the day-to-day costs of a foster child. It gives us a flavour, types of items: clothing, footwear, toiletries, hobbies, holidays, summer camps, pocket money, special occasions, school transport, grinds, treats, toys, travel bags, transport to and from access, gifts for birth family, school. Can you perhaps please explain to us whether firstly orthodontic treatment is on the list?”
Team leader: “It’s not named.”
Parents’ solicitor: “Orthodontic treatment could hardly be described as a day-to- day cost.”
Team leader: “I disagree with that, it isn’t an exhaustive list, there are lots of children these days that have orthodontic treatment.” She pointed out that other children would have hobbies over the years such as horse riding and summer camps that would be of a similar cost. The parents’ solicitor replied that it was not an issue as to whether costs were similar to others on the list but “what cannot be reasonably expected is not on the list”.
The team leader told the court there was no document which excluded what should not be paid by the foster carers’ allowance.
Submissions
In submissions the parents’ solicitor told the court that he was seeking a Section 47 direction in relation to the provision of dental treatment services for the benefit and best interests of the minor which would not establish a binding precedent. He said that the court had discretion to make the directions he was seeking and that it was reasonable for the parents not to pay for it from their fostering allowance. Furthermore the foster parents had not received a written decision or the basis upon which the decision was made.
The solicitor for the CFA said that it was not within the District Court’s jurisdiction to make the sought direction for funding. The solicitor said she was relying on the separation of powers in that regard and that the expending of public money was a matter for the Oireachtas or particular state bodies and not the court. Payments to foster carers were a matter exclusively for the CFA, said the solicitor. The CFA believed that B’s needs were currently being met and the mother had already said she would continue to pay for the treatment in the event funding was not directed by the court.
She said the CFA had no discretion to provide dental services for the benefit of B, that it was a matter for the HSE. The CFA had done what it was statutorily obliged to do.
Decision
The judge did not make the direction for funding, stating that it was not open to the court. Within her decision she said: “The obligation of the executive is to determine how funding is spent. I accept they must balance the obligation to fund all children under the service, under their formula. [B] is in receipt of the treatment and it is not open to the court to direct the CFA to fund that treatment privately. The process we have gone through is outside the remit of this court. With regret I refuse the application but I think that the foster parents deserve to be congratulated on the extent of their advocacy for [B] and their care which is acknowledged to be exemplary by the CFA.”
She also said she was quite convinced that the letter from the orthodontist, stating that the child might need surgery later on, motivated the on-going quest by the foster carers to procure the treatment and fund the treatment they felt was absolutely vital for the child.
