Lennon v Disabled Drivers Medical Board of Appeal Reeves v Disabled Drivers Medical Board of Appeal

JurisdictionIreland
JudgeMs. Justice Costello
Judgment Date25 February 2019
Neutral Citation[2019] IECA 61
Date25 February 2019
CourtCourt of Appeal (Ireland)
Docket NumberNeutral Citation Number: [2019] IECA 61 Record Nos. 2018/337 Record Nos. 2018/339

2019 IECA 61

THE COURT OF APPEAL

Costello J.

Whelan J.

McGovern J.

Costello J.

Neutral Citation Number: [2019] IECA 61

Record Nos. 2018/337

Record Nos. 2018/339

BETWEEN/
GEORGE (FORMERLY EVA) LENNON (A MINOR SUING BY MOTHER AND NEXT FRIEND MARGARET LENNON) MARGARET LENNON
APPELLANTS/APPLICANTS
- AND–
DISABLED DRIVERS MEDICAL BOARD OF APPEAL, THE MINISTER FOR FINANCE, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS
BETWEEN/
ALYSSA REEVES (A MINOR SUING BY MOTHER AND NEXT FRIEND, AMANDA REEVES) AMANDA REEVES
APPELLANTS/APPLICANTS
- AND–
DISABLED DRIVERS MEDICAL BOARD OF APPEAL, THE MINISTER FOR FINANCE, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

Primary medical certificate – Statutory scheme – Certiorari – Appellants seeking orders of certiorari – Whether the power conferred upon respondent to make regulations had been exercised invalidly

Facts: The first appellant in the first proceedings, Mr Lennon, suffers from Ehlers-Danlos Syndrome (Hypermobility) and Postural Tachycardia Syndrome (POTS) and as a result he is severely and permanently disabled. The second appellant in the first proceedings, his mother, applied for a primary medical certificate on the 12th January 2017 on his behalf. On the 25th April 2017 the application was disallowed and she appealed that decision to the first respondent in both proceedings, Disabled Drivers Medical Board of Appeal. By letter dated the 29th January 2018, she was informed that the board was unable to issue a certificate which would entitle Mr Lennon to claim under the statutory scheme. The first appellant in the second proceedings, Ms Reeves, suffers from spina bifida, hydrocephalus and Arnold Chiari II Malformation as a result of which she is severely and permanently disabled. The second appellant in the second proceedings, her mother, applied for a primary medical certificate on or about the 11th July 2016. That application was refused. She made a second application on the 22nd September 2017 which also was unsuccessful. On the 13th November 2017 she appealed the decision to the board. By letter dated the 23rd May 2018, she was informed that the board was unable to issue a certificate which would entitle Ms Lennon to claim under the scheme. The High Court (O’Regan J), on the 31st July 2018, refused the appellants orders of certiorari in respect of the decisions dated the 29th January 2018 and 21st May 2018 by the board pursuant to the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations, 1994 and a declaration that Regulation 3 of the Regulations is ultra vires s. 92 of the Finance Act 1989. The appellants appealed to the Court of Appeal against that decision. The primary ground of appeal advanced was that the power conferred upon the third respondent in both proceedings, Ireland, to make regulations had been exercised invalidly and/or unreasonably and/or unlawfully amends, circumscribes and/or fetters the parent legislation so that Regulation 3 is ultra vires s. 92 of the Finance Act 1989. It was also argued that there had been a failure to consider adequately or at all the evidence submitted by the first appellant and a failure to give adequate and intelligible reasons in each decision.

Held by Costello J that the appellants had failed to establish grounds for reversing the decision of the High Court.

Costello J held that she would dismiss the appeal and affirm the decisions of the High Court.

Appeal dismissed.

JUDGMENT of Ms. Justice Costello delivered on the 25th day of February, 2019
1

This is an appeal of the decision of O'Regan J. on the 31st July 2018 ( [2018] IEHC 465) where she refused the applicants orders of certiorari in respect of decisions dated the 29th January 2018 and 21st May 2018 by the first named respondent pursuant to the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations, 1994 (‘the Regulations’) and a declaration that Regulation 3 of the Regulations is ultra vires s. 92 of the Finance Act 1989 (as amended).

The Statutory Scheme
2

Before considering the cases of the appellants it is necessary to consider the statutory scheme which is at the centre of these proceedings. Section 92 of the Finance Act 1989 (as amended) provides: -

92(1) Notwithstanding anything to the contrary contained in any enactment, the Minister for Finance may, after consultation with the Minister for Health and the Minister for the Environment, make regulations providing for—

(a) the repayment of excise duty and value-added tax and the remission of road tax in respect of a motor vehicle used by, and

(b) the repayment of excise duty relating to hydrocarbon oil used for combustion in the engines of vehicles, to be specified in the regulations, by, a severely and permanently disabled person—

(i) as a driver, where the disablement is of such a nature that the person concerned could not drive any vehicle unless it is specially constructed or adapted to take account of that disablement, or

(ii) as a passenger, where the vehicle has been specially constructed or adapted to take account of the passenger's disablement, and where the vehicle is adapted, the cost of such adaptation consists of not less than 30 per cent. of the value of the vehicle excluding tax and excise duty, or such lesser percentage in respect of certain cases as may be specified by regulations in respect of the repayment of any tax relating to adaptation costs only.

(2) Regulations under this section shall provide for—

(a) the criteria for eligibility for the remission of the taxes specified in subsection (1), including such further medical criteria in relation to disabilities as may be considered necessary,

and the regulations may provide for such other matters as the Minister for Finance considers necessary or expedient for the purposes of giving effect to this section.’

3

The Minister made the regulations in 1994 pursuant to s. 92 of the Act. The Regulations state: -

‘Disabled passenger’ means a severely and permanently disabled person who possesses a certificate of the kind referred to in paragraph (a) or (b) of Regulation 4 and for whom a vehicle has been specially constructed or adapted to the extent prescribed in Regulation 10 (1) (a), to take account of that passenger's disablement;

‘Disabled person’ means a person who is severely and permanently disabled, fulfilling one or more of the medical criteria set out in Regulation 3…’

4

Regulations 3 and 4 provide:-

‘Medical criteria

3. For the purposes of section 92 (2) (a) of the Finance Act, 1989, the eligibility on medical grounds of disabled persons who are severely and permanently disabled shall be assessed by reference to any one or more of the following medical criteria:

(a) persons who are wholly or almost wholly without the use of both legs;

(b) persons wholly without the use of one of their legs and almost wholly without the use of the other leg such that they are severely restricted as to movement of their lower limbs;

(c) persons without both hands or without both arms;

(d) persons without one or both legs;

(e) persons wholly or almost wholly without the use of both hands or arms and wholly or almost wholly without the use of one leg;

(f) persons having the medical condition of dwarfism and who have serious difficulties of movement of the lower limbs.

4. Without prejudice to Regulation 5, a claim for repayment or remission under these Regulations shall be allowed only where the person who makes the claim, or in connection with whom the claim is made, is in possession of either—

(a) a primary medical certificate duly completed in the form prescribed in the First Schedule as evidence of qualifying disablement, signed, dated and endorsed with the official stamp by the appropriate Director of Community Care and Medical Officer of Health, or

(b) a Board medical certificate duly completed in the form prescribed in the Second Schedule as evidence of qualifying disablement, signed and dated by a member of the Disabled Drivers Medical Board of Appeal:

Provided that compliance with this Regulation may be waived by the Revenue Commissioners in the case of a claim made by a qualifying organisation.’

5

Thus, the third named respondent was empowered by s. 92(2) of the Act to make regulations providing for eligibility for the repayment or remission of taxes including such further medical criteria in relation to disabilities as may be considered necessary. He exercised that power by promulgating the regulations. The further medical criteria are set out in Regulation 3 of the Regulations. The relevant criteria for the purposes of these cases are: -

(a) Persons who are wholly or almost wholly without the use of both legs.

(b) Persons wholly without the use of one of their legs and almost wholly without the use of the other leg such that they are severely restricted as to the movement of their lower limbs.

(e) Persons wholly or almost wholly without the use of both hands or arms and wholly or almost wholly without the use of one leg.

6

It is necessary to apply to the second named respondent for a primary medical certificate in order to obtain remission from the taxes referred to in s. 92 of the Act. The certificate is ‘evidence of qualifying disablement’. If the application is refused, an applicant for a primary medical certificate may appeal the decision to the Disabled Drivers Medical Board of Appeal, the first named respondent. An appellant is free to produce any relevant medical evidence upon which he or she seeks to rely. The first named respondent consists of three medical doctors. They consider all relevant evidence submitted by an appellant and any oral submissions made by or on behalf of the appellant. They conduct an assessment including a physical examination, reviewing the notes and asking questions on the relevant medical history of the appellant to see whether he or she satisfies the...

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3 cases
  • Reeves v Disabled Drivers Medical Board of Appeal, Lennon v Disabled Drivers Medical Board of Appeal
    • Ireland
    • Supreme Court
    • 18 Junio 2020
    ...for the decision had been provided. The Court of Appeal 23 The sole judgment in the Court of Appeal was delivered by Costello J. (see [2019] IECA 61). In approaching the first question – whether what had been done by Regulation 3 was within the Minister's powers under s.92 of the Act – she ......
  • Lennon (A Minor) v Disabled Drivers Medical Board
    • Ireland
    • Supreme Court
    • 9 Octubre 2019
    ...of the High Court to grant relief by way of judicial review (see Lennon & anor v. Disabled Drivers Medical Board of Appeal and ors [2019] IECA 61, delivered 28th March 2019, and [2018] IEHC 465, delivered 31st July 2018, General Considerations 2 The general principles applied by this Court ......
  • Reeves (minor) v Disabled Drivers Medical Board
    • Ireland
    • Supreme Court
    • 9 Octubre 2019
    ...of the High Court to grant relief by way of judicial review (see Lennon & anor v. Disabled Drivers Medical Board of Appeal and ors [2019] IECA 61, delivered 28th March 2019, and [2018] IEHC 465, delivered 31st July 2018, General Considerations 2 The general principles applied by this Court ......

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