O'G -v- The Residential Institutions Redress Board, [2015] IESC 41 (2015)

Docket Number:50/2013
Party Name:O'G, The Residential Institutions Redress Board
 
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THE SUPREME COURTRecord No. 050/2013

Denham C.J.

Hardiman J.

Clarke J.

Dunne J.

Charleton J.

Between/

  1. O’GApplicant/Appellantand

The Residential Institutions Redress Board

Respondent/Respondent

Judgment delivered on the 15th day of May, 2015, by Denham C.J.

  1. This is an appeal brought by A.O’G., the applicant/appellant, referred to as “the appellant”, from a decision of the High Court (Hogan J.) delivered on the 6th November, 2012, refusing to grant an order of certiorari or to make a declaration, in relation to a decision of the Residential Institutions Redress Board, the respondent/respondent, referred to as “the Board”.

  2. The appellant sought leave from the Board to extend the time and so to enable her to make an application for compensation. This was refused by the Board on the 17th August, 2011.

  3. The appellant then sought, and was permitted, to bring an application for judicial review, by the High Court (Peart J.), on the 21st November, 2011.

  4. The High Court ordered that the appellant have leave to apply by way of application for judicial review on the following grounds:-

    “(1) The determination of the 17th August 2011 was ultra vires the [Board] in that it failed or neglected to exercise its statutory discretion in accordance with the provisions of the parent statute and the Constitution in that:

    Failure to apply criteria determined by itself

    (a) The [Board] failed to apply its discretion in accordance with the criteria it had set itself (these criteria are set out on the third page of the determination of the 17th of August 2011 itself) in that it wholly failed to consider whether the [appellant] could have been inhibited or prevented in an exceptional way, from making an application within the relevant period, whether ignorance of the Redress Scheme was justified or not. Further, inter alia, when determining if exceptional circumstances existed, it failed to consider the following factors which applied, (and which factors applied for, inter alia, a substantial portion of the period between the creation of the Redress scheme on the 16th of December, 2002 and deadline of the 15th of December, 2005). Those factors were as follows:

    (i) the mental health of the [appellant] and whether that inhibited the [appellant] from making the relevant application within the relevant period.

    (ii) the personal family circumstances of the [appellant] and whether that inhibited the [appellant] from making the application within the relevant period. For example the [appellant] was pregnant four times in two years. Two of the pregnancies resulted in miscarriage. She was a young girl living the life of an individual much older than her. She spent a number of years caring for her husband’s elderly mother who suffered from advanced dementia. She had little education and lived in an isolated village with no human interaction outside of her husband and her three infant children.

    (iii) The communication problems of the [appellant]; fear of not being believed, fear of confiding in her General Practitioner about experiencing depression and active suppression of childhood abuse, which matters were set out in the report of Dr. Mary McGuire, Consultant Psychiatrist dated the 14th January, 2011. These matters were not expressly considered at all.

    Failed to take into account relevant considerations/Failed to exercise statutory function

    (b) The [Board] failed to exercise important parts of its statutory function and/or failed to take into account relevant considerations in that it failed to adequately or at all consider the factual material presented by the [appellant] in support of her application of an extension of the deadline; it failed to make any factual findings on the evidence given in support of the factors set out in paragraph (a) (i) – (iii) above.

    Failure to act judicially

    (c) The [Board], in light of ground E1(b) above, failed to act judicially in failing to make appropriate findings of fact or rulings on legal issues so as to deal in a judicial fashion with the evidence adduced by the [appellant]. The [Board] essentially only make 3 findings of fact namely:

    (i) That the [appellant] was not aware of the Redress Scheme prior to 2008.

    (ii) The [appellant] was not disabled by any mood difficulties during the relevant period to such an extent that the existence of the Redress Board was prevented from coming to her attention during that period.

    (iii) The [appellant] was not so affected by social isolation, depressive symptomology or psychological distress that the Redress Board could not have come to her attention.

    This self imposed restriction on the analysis of the evidence, left swathes of important evidence and also relevant live issues unassessed. Further, in particular, the [Board] did not judicially assess the Report of Dr. Mary McGuire, Consultant Psychiatrist of the 14th January, 2011. The [Board] was required by law, in all the circumstances, to make findings on all relevant factual matters and legal issues, which it failed to do.

    Taking into account irrelevant considerations

    (d) The [Board] took into account irrelevant considerations in that it inter alia, considered extensively whether reasonable steps had been taken to advertise the provisions of the Act of 2002, or whether the [appellant] ought to have known about the Act of 2002, once it found as a fact that the [appellant] did not know of the existence of the scheme for compensation under the Act of 2002 prior to the deadline of the 15th December, 2005.”

  5. The application was heard by the High Court, and Hogan J. delivered judgment on the 6th November, 2012. The learned High Court judge stated that he would have interpreted the words of the statute “exceptional circumstances”, in a manner different from that of the Board. However, he felt constrained by two previous decisions of the High Court, JOB v. Residential Institutions Redress Board [2009] IEHC 284 and MG v. Residential Institutions Redress Board [2011] IEHC 332.

  6. The learned High Court judge held:-

    “If the issue of statutory interpretation presented by this application were res integra, I would have held that the Board had proceeded on an incorrect understanding of the meaning of the phrase ‘exceptional circumstances’ as it appeared in the precise statutory context of s. 8(2) of the 2002 Act, not least having regard to the remedial nature of that Act. In those circumstances I would have found for the applicant.

    The matter is not, however, res integra, but is rather covered by recent authority. In view of the fact that this Court has already determined in both JOB and MG that the Board was entitled to conclude that the mere fact that a former resident of an institution was unaware of the scheme during the three year period did not of itself constitute ‘exceptional circumstances’ as would justify an extension of time for the purposes of s. 8(2) of the 2002 Act, I consider that I am effectively compelled by these authorities to resolve this issue adversely to the applicant.

    It is in these somewhat singular circumstances that, with deep personal reluctance, I must dismiss this application for judicial review.”

    Notice of Appeal

  7. The appellant filed a notice of appeal as follows:-

    The appellant appeals on the grounds that the learned High Court judge misdirected himself in law and/or in fact and/or in the mixed question of law and fact in that he:

    (a) Failed to grant the relief as sought in the statement of grounds herein,

    in particular failing to grant the relief of certiorari by way of judicial review in circumstances where he had found that the Board had on one view wrongly interpreted the scope of its statutory discretion pursuant to section 8(2) of the Residential Institutions Redress Board Act, 2002.

    (b) Erroneously considered himself bound to follow two High Court judgments differently interpreting the scope of the Board’s statutory discretion.

    (c) Erroneously concluded that the question of the correct interpretation of section 8(2) did not raise any fundamental issue of principle.

    (d) Erred in not concluding that the appellant’s circumstances were exceptional within the meaning of section 8(2) of the 2002 Act.

    (e) Failed to address in his judgment, or find for the appellant on the basis that the Board had failed to exercise its statutory discretion in accordance with the criteria which the Board itself had determined were applicable.

    (f) Failed to address in his judgment or find for the appellant on the basis that the failure to provide an internal appeal mechanism for a determination refusing an extension pursuant to section 8(2) of the Act of 2002 was ultra vires the statute in that the relevant statute, constitutionally interpreted, required such an internal appeal mechanism.

    (g) Failed to find that the Board had erred in failing to take into account all of the circumstances /relevant considerations pertaining to the case of the appellant in making the relevant...

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