Central Applications Office Ltd -v- Minister for Community, Rural and Gaeltacht Affairs & Ors,  IEHC 309 (2008)
|Docket Number:||2006 5705 P|
|Party Name:||Central Applications Office Ltd, Minister for Community, Rural and Gaeltacht Affairs & Ors|
|Judge:||Mac Menamin J.|
THE HIGH COURT2006 No. 5705 P
CENTRAL APPLICATIONS OFFICE LTD.PLAINTIFFand
THE MINISTER FOR COMMUNITY, RURAL AND GAELTACHT AFFAIRS, IRELAND AND THE ATTORNEY GENERAL DEFENDANTSJudgment of Mr. Justice John MacMenamin dated 14th October, 2008
On the 10th April, 2006, the plaintiff ('the C.A.O.') was informed by the first named defendant's department that it had been designated as a "public body" by virtue of the Official Languages Act 2003 (Public Bodies) Regulations 2006 ("the 2006 Regulations"). The effect of this designation was to impose certain duties of compliance on the plaintiff in relation to the provision of services in the first national language. These would include the provision of official documents, and the capacity to conduct its activities and functions through the medium of the Irish language. The plaintiff now seeks a declaration that such designation pursuant to those regulations is ultra vires the Official Languages Act of 2003 (the Act of 2003). This judgment deals, firstly with the evidence as to the function and activities of the C.A.O., giving rise to the basis of the challenge, secondly, with the provisions of the Act of 2003, and thirdly, with the application of those provisions to the factual context in accordance with authority.
I The Central Applications Office Ltd - functions and activities
The C.A.O. is a non-profit company limited by guarantee. It is based in Galway. It was established in 1976. Normally it employs ten people, but this increases at peak examination times. Its principal function is centrally to process and prioritise applications for admission to third level colleges and institutions. It does not now receive public funding although it received seed capital at its establishment. Its revenue base is largely derived from student application fees. The State has no responsibility for its operation.
How the C.A.O. functions
The sole witness in the hearing was Mr. Joseph O'Grady, the operations manager of the C.A.O., who has worked there since 1992. He testified that prior to the establishment of that body in 1976, no central application or admission service existed for the third level educational institutions. The distinction between applications and admissions is of importance, in that only educational institutions admit candidates. The C.A.O. does not have this function.
Up to 1976, applications for third level places were processed separately by each of the individual admissions offices of the universities. But with the introduction of the points system problems arose. These are described below. The universities decided that it would be best to form a single body to unify the process of applications. These founding universities were the then constituent colleges of the National Universities of Ireland in Dublin, Galway, Cork, Maynooth, together with Trinity College, Dublin.
The main problem was that prior to the inception of the C.A.O., duplication of admissions occurred in places in the "high demand" faculties in the universities. At that time each higher education institution separately processed these. No information was shared. Thus, for example, an applicant might submit an application, be considered, and receive a placement for medicine in Trinity College, Dublin in October of an academic year, only for that college to find he/she had already commenced the same course in University College, Dublin. This non-unified regime created obvious administrative difficulties. Often second, third or later choice vacancies were filled late, rather than prior to the commencement of that term.
The effect of the new unified system was that in response to one single application, just one offer, prioritised in accordance with State examination results, went out to each applicant. Such applicant would then decide whether or not they wished to accept that offer. A candidate achieving a high level of points was very likely to be given his or her first preference in faculty and university. In turn, each university became aware at an appropriate time as to whether place offers were to be accepted or rejected. This new system expanded to almost all higher educational institutions over succeeding years.
The Central Admissions Office does not itself admit candidates to any university or other third level institution. Its function is to process the initial offers, as instructed by the higher education institutions. The clear evidence in this case was that the function of admission by such institution was reserved to itself. I find the C.A.O. is therefore, essentially a service provider relating to applications only. It provides a process of determining applications in accordance with identified criteria, but now on a centralised basis, in accordance with place availability and point attainment.
It is now necessary to examine the present procedure in some further detail. One of the issues is the extent to which this differs from that operating prior to 1976.
Further analysis of the C.A.O. procedure
The fundamental procedure adopted has not significantly altered since its inception in 1976. But there are now 45 affiliated higher education institutions.
Early in the calendar year the C.A.O. receives applications from students intending to sit the Leaving Certificate or other relevant State examinations. These are processed and placed into electronic files. When each candidate's Leaving Certificate results are provided, the office carries out a check as to whether or not such candidate has met the subject entry requirement for the course chosen, calculates his/her points, and places them on a list in order of merit.
To summarise therefore:
1) the C.A.O. functions in a single location;
2) it engages in one single placement application procedure for all candidates;
3) it deals with applications only and not admissions;
4) it processes examination results in accordance with grades and points;
5) it allocates places in higher educational institutions in accordance with points attainment;
6) it is a private company.
The "function" of the C.A.O.
This case hinges largely on statutory interpretation. A significant issue is whether the process in which the C.A.O. has been engaged since 1976 is a different "function," (as defined in the Act of 2003) from that carried out by the universities previously. In essence function is defined as power or duty. The relevant definitions are outlined in Part II (paragraph 19) of this judgment.
The pre-1976 system
The evidence established that:
1) prior to 1976, the individual universities used to receive separate applications and process them internally;
2) they did not engage in a ranking process of the type just described;
3) in the pre- "points" era, university places were allocated simply on the basis of a "pass" in final secondary examinations; and later by the attainment simply of certain grades. There was no need then for a detailed points system involving ranking.
Independent admission procedures
Even now, not all third level institutions apply examination results as their sole admission criteria. For example, the National College of Art and Design carries out assessments on the basis of submitted portfolios, the results of which are sent to the C.A.O. for the purposes of offers being made to candidates. Discretionary procedures are applied in relation to mature students in some institutions.
Additionally, certain institutions (such as the Royal College of Surgeons in Ireland) themselves receive direct applications from residents inside and outside the European Union. These applications are processed internally.
At the time of its inception only the five identified universities or colleges in the State were affiliated to the C.A.O. Subsequently these were followed by the regional technical colleges and institutions in 1991, and other colleges and institutions, including private colleges, in 1997.
The Objects Clause
The primary objects of the company as defined in its memorandum and articles of association are:-
"to establish carry on and manage and maintain an establishment or organisation in Ireland for the purpose of regulating, administration, organising or otherwise processing in any manner whatsoever applications for admission to courses to all universities, colleges of education, higher technological institutes, teaching colleges and other institutions offering third level education and to carry on in cooperation with all or any of such institutions, all or any administrative procedures to facilitate the admission of students to such institutions in any manner whatsoever." (emphasis added.)
Each third level institution is represented on an administrative board of the C.A.O., together with a representative of the Higher Education Authority. Only such higher education institutions which offer third level undergraduate courses validated and approved by recognised universities of the State or by HETAC (that is the Higher Education and Training Awards Council) may become participants in the C.A.O. process for which each candidate pays a stipulated fee. In passing it might be noted that HETAC itself is a designated body in the First Schedule to the Act. So, also, are the universities.
It is now necessary to consider this evidence in the light of the provisions of the Act of 2003.
II Relevant provisions of the Act of 2003
In its long title the purpose of the Act is outlined as being:-
"AN ACT TO PROMOTE THE USE OF THE IRISH LANGUAGE FOR OFFICIAL PURPOSES IN THE STATE; TO PROVIDE FOR THE USE OF BOTH OFFICIAL LANGUAGES OF THE STATE IN PARLIAMENTARY PROCEEDINGS, IN ACTS OF THE OIREACHTAS, IN THE ADMINISTRATION OF JUSTICE, IN COMMUNICATING WITH OR PROVIDING SERVICES TO THE PUBLIC AND IN CARRYING OUT THE WORK OF PUBLIC BODIES; TO SET OUT THE DUTIES OF SUCH BODIES WITH RESPECT TO THE OFFICIAL LANGUAGES OF THE STATE; AND FOR THOSE PURPOSES, TO PROVIDE FOR THE ESTABLISHMENT...
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