A.G v Residental Institutions Redress Board
|Mr. Justice Hogan
|06 November 2012
| IEHC 492
|06 November 2012
 IEHC 492
THE HIGH COURT
Administrative law - Tort law - Redress - Residential Institutions - Time period - Knowledge - Statutory interpretation - Awareness - Res integra - Remedial statute - Residential Institutions Redress Board Act 2002
Facts: The applicant sought to quash a decision of the Board which had refused to extend time beyond the statutory time limit for making applications for redress. She sought to enable her to apply for compensation for residential abuse suffered, pursuant to the procedures established by the Residential Institutions Redress Board Act 2002, which was established in 2002. The applicant made an application in 2010 and the closing date for applications had been in 2005. The Board had rejected her claim that she could demonstrate exceptional circumstances such as to apply for an extension of time. The question arose as to the interpretation by the Board of exceptional circumstances pursuant to a remedial statute and the relevance of knowledge on the part of an applicant of the time periods under the scheme, in light of previous case law.
Held by Hogan J. that if the issue of statutory interpretation were res integra, the Court would have held that the Board had proceeded on an incorrect understanding of the meaning of the phrase "exceptional circumstances". However, the matter was not res integra but was rather covered by recent authority. It had been held in previous case law that the Board was entitled to conclude that the mere fact that a former resident of an institution was unaware of the scheme during a three-year period after the enactment of the Board did not of itself constitute exceptional circumstances to justify an extension of time for the purposes of s. 8 of the Act of 2002. The Court was compelled to decide the case adversely to the applicant. The Court would dismiss the application for judicial review.
JUDGMENT of Mr. Justice Hogan delivered on 6th November, 2012
1. The appalling treatment of generations of children in residential care has cast a long shadow over the institutions of this State and ought to be a matter of abject shame for the rest of us who sat idly by as this was allowed to occur. Few who survived such treatment have emerged unscathed. The cases which come before the Residential Institutions Redress Board ("the Board") and the courts arising from this period are tragically replete with searing accounts of physical cruelty, sexual abuse, emotional neglect and institutional indifference to the fate of those who were condemned by society to be raised in such an environment.
2. It was with a view to making some recompense to those whose lives were broken, ruined or damaged in this fashion that the Oireachtas enacted the Residential Institutions Redress Board Act 2002 ("the 2002 Act"). The Long Title to the 2002 Act provides:-
"An Act to provide for the making of financial awards to assist in the recovery of certain persons who as children were resident in certain institutions in the State and who have or have had injuries that are consistent with abuse received while so resident and for that purpose to establish the Residential Institutions Redress Board to make such awards and to provide for the review of such awards by the Residential Institutions Review Committee and to provide for related matters."
3. This was the background to the 2000 Act. The applicant now seeks to quash a decision of the Board dated the 17 th August, 2011, which refused to extend time beyond the statutory time limit pursuant to s. 8(2) of the 2000 Act for making applications for redress as would have enabled her to apply to the Board for compensation. This sub-section enables the Board to extend time where it considers that there are "exceptional circumstances." The applicant's case, in essence, is that the Board misdirected itself as to the meaning of this phrase and that its decision should be quashed accordingly.
4. Section 8 of the 2000 Act provides:-
2 "(1) An applicant shall make an application to the Board within three years of the establishment day.
(2) The Board may, at its discretion and where it considers there are exceptional circumstances, extend the period referred to in subsection (1).
(3) The Board shall extend the period referred to in subsection (1) where it is satisfied that an applicant was under a legal disability by reason of unsound mind at the time when such application should otherwise have been made and the applicant concerned makes an application to the Board within three years of the cessation of that disability."
5. The establishment day in question was the 16 th December, 2002, so that the closing day for applications for the purposes of s. 8(1) was 15 th December, 2005. The applicant did not, unfortunately, make an application to the Board until 3 rd September, 2010. (As it happens, due to subsequent legislative change the Board cannot entertain any further applications under any circumstances after 17 th September, 2011: see s. 8(4) of the 2002 Act (as inserted by s.1 of the Residential Institutions Redress Board (Amendment) Act 2011)).
6. The applicant contends that she attended two institutions named in the schedule to the 2002 Act in the 1980s. She says that during that time she was subjected to non-penetrative sexual abuse and emotional neglect during this period. When she left institutional life at the age of about 16 she found herself totally unprepared for life. She drank heavily and took an overdose of tablets.
7. If her account is to be accepted, she portrays a chaotic life characterised by acute psychological distress in which she resorted to a series of promiscuous encounters in a vain effort to find self-confidence, love and acceptance. She had a number of miscarriages when aged 16. She married at a young age and she had two children who occupied much of her time. Although she maintained that she was overwhelmed by feelings of distress and sadness, the Board was ultimately to find following an oral hearing held on 15 th June, 2011, that she was not so adversely affected:-
"by psychological distress, social isolation or depressive symptomotology during the period between December of 2002 and December of 2005 that the existence of the Redress Board could not have come to her attention during that period."
8. It is important to stress that no challenge has been taken in respect of this aspect of the Board's decision. Rather the challenge is exclusively based on the manner in which the Board interpreted its jurisdiction to extend time under s. 8(2). In essence, the applicant's case is that she was not aware of her entitlement to possible redress until 2008 ( i.e., well after the closing date had closed) and that this constitutes - or, at least, is capable of constituting -"exceptional" circumstances within the meaning of the 2000 Act.
9. The Board gave a commendably elaborate analysis of this issue in its decision of the 16 th August, 2011. The comprehensive nature of the reasoning is such that one must fear that any extracts may not do it full justice. The following passages may nevertheless be taken as representative of the reasoning of the Board.
10. The Board first noted that the there was no definition of the phrase "exceptional circumstances" contained in the 2002 Act:-
"However, some guidance is to be found in the Oxford English Dictionary's definition of "exceptional circumstances" as being of "the nature of forming an exception; out of the ordinary course, unusual, special". The same dictionary defines "exceptional case" as one which is "excepted, a particular case which comes under the terms of a rule in which the rule is not applicable; a person or thing that does not conform the general rule affecting any other individuals of the same class". In essence the Board considers that "exceptional" means something out of the ordinary. The circumstances must be unusual, probably quite unusual, but not necessarily highly unusual. The definition outlined throughout provides a useful framework from which it is clear and make it appropriate for the Board to apply a test of uniqueness in these cases."
11. While the Board accepted that it was probably impossible to give an exhaustive definition of the term on a priori basis, it went on to say:-
"However, such an approach does not prevent the Board from envisages or surmising what sort of exceptional circumstances in a particular case might be considered exceptional, for example, the effect or impact of mental or physical health problems or conditions in a particular individuals; personal family circumstances whether in the applicant's own life or in the lives of others for whom he or she cares; communication problems; or difficulties with legal advice. Any of these considered circumstances prevailing at a relevant time could have the effect of preventing or inhibiting an applicant from making an application within the prescribed period and could be considered exceptional."
12. The Board went on to say, however, that it was of the view that:-
"… ignorance of the existence of the Redress Scheme and/or closing date, in and of itself, does not constitute exceptional circumstances. A substantial majority of late applicants state that their applications were late because they did not know about the Redress Scheme in time. However, if the Oireachtas intended that all such applications be accepted, the Board considers that it would have employed a state of knowledge test in s. 8(2) rather than the test of exceptional circumstances. However, lack of knowledge may have arisen in the...
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