A severely autistic boy with serious behavioural problems has been awarded the legal costs, estimated at up to €300,000, of his High Court attempt to secure appropriate education from the State. The award is against the Minister for Education and the Northern Area Health Board (NAHB).
A separate action for damages brought on behalf of Lewis O'Carolan (14) for the alleged failure of the Minister to provide appropriate education for him to date will proceed later.
Lewis's mother, Annette O'Carolan, of Norfolk Road, Phibsboro, Dublin, had previously told the court they had sought facilities from the State for years but "never anything concrete".
The purpose of the action for damages was to try and put Lewis in the position he would have been in had appropriate facilities been provided for him in the past, to have him appropriately treated now, and to allow him become a reasonably functioning human being, Dr Michael Forde SC, for the boy, said.
Yesterday, in awarding costs of a three-day hearing which had focused on providing a place for Lewis now, Mr Justice John McMenamim said he was doing so having regard to the fact Lewis is a minor and because an offer from the Minister to place the boy in a centre, Woodlawn, in north Dublin, "crystallised" about the time of the hearing and was ultimately finalised to the judge's satisfaction only after the hearing was completed.
John O'Donnell SC, for the Minister for Education, and Barry O'Donnell, for the NAHB, had asked that the judge make no order for costs of the three-day hearing, which would have meant that the sides bear their own costs.
Mr O'Donnell said he believed his side was entitled to the costs but they were not applying for them and were asking instead that the court make no order. Counsel said no injunction was granted to the boy and there was no declaration that the State had failed in its duty.
However, Dr Forde said he was seeking his costs against the Minister and board. He said the proceedings were initiated in December 2003. A year later, the State made an offer in open court for Lewis "in very general terms".
It later transpired that offer, of a unit in Cabra, was inadequate. There was nothing available but swimming lessons up to December 2004.
John O'Donnell said his side did not accept that the facilities offered for Lewis to date were inadequate or inappropriate. He said the court had heard no evidence and had made no adjudication on the other facilities. It was always the State's position that the facilities offered were adequate. However, the O'Carolans were not happy with them and the State had tried to facilitate the family. Barry O'Donnell said he adopted the submissions made by the Minister.
Mr Justice McMenamim said it was correct to say the court had made no findings on the earlier proposals advanced for Lewis. He had heard no real evidence about those or about a facility in Wales favoured by the O'Carolans. However, he was making the award of costs on the basis the Woodlawn proposal had only crystallised after the hearing.
Also yesterday, the judge made directions in relation to holding a separate hearing of a claim for damages brought on behalf of the boy for the alleged failure of the State to provide appropriate education for him up to when the Woodlawn proposal was finalised. He said he was prepared to hear that claim on July 19th if the parties are ready to proceed at that point, and listed the matter for mention on June 28th.
