Reeves v Disabled Drivers Medical Board of Appeal, Lennon v Disabled Drivers Medical Board of Appeal
| Jurisdiction | Ireland |
| Judge | Ms. Justice Iseult O'Malley |
| Judgment Date | 18 June 2020 |
| Neutral Citation | [2020] IESC 31 |
| Court | Supreme Court |
| Docket Number | [Supreme Court Appeal Nos: 144/2019 and 146/2019] |
| Date | 18 June 2020 |
AND
AND
[2020] IESC 31
Clarke C.J.
O'Donnell J.
McKechnie J.
Charleton J.
O'Malley J.
[Supreme Court Appeal Nos: 144/2019 and 146/2019]
THE SUPREME COURT
Medical certificates – Motor vehicle costs – Judicial review – Appellants seeking orders of certiorari quashing the decisions of the respondent – Whether Regulation 3 of the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations 1994 is ultra vires the provisions of s. 92 of the Finance Act 1989
Facts: The second appellants in both cases, Ms Reeves and Ms Lennon, applied for medical certificates in respect of the first appellants, their disabled children, which could have entitled them to some repayments and remissions of motor vehicle costs. Both applications were unsuccessful, as were the appeals to the first respondent, the Disabled Drivers Medical Board of Appeal, because the children were deemed not to satisfy the criteria set out in Regulation 3 of the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations, 1994. The appellants then sought orders of certiorari quashing the decisions of the Board, and a declaration that Regulation 3 is ultra vires the provisions of s. 92 of the Finance Act 1989, as amended. The appellants pleaded that the second respondent, the Minister for Finance, had, in making the regulations, unlawfully circumscribed the parameters of s. 92 of the 1989 Act. They also pleaded that the Board had not given adequate reasons for its decisions. The High Court and the Court of Appeal refused the claims for relief. Leave to appeal to the Supreme Court in respect of both issues in the case was granted by determinations dated the 9th October 2019.
Held by O’Malley J that the failure to explain the decision could be sufficient to dispose of the case, having regard to the considerations identified in Mallak v Minister for Justice [2012] 3 I.R. 297. However, he found that the decisions also raised a more fundamental question so far as the substantive issue relating to the regulations was concerned: in the context of a statutory scheme of assistance in respect of the adaptation of vehicles to the needs of the seriously and permanently disabled, what is the relevance of the ability to walk 25 steps with a walker, or to walk 100 metres before needing to rest? O’Malley J found that the undisputed evidence established that the individuals concerned cannot, as a matter of practical reality, get around outside their homes without a wheelchair, and it was accepted that the wheelchairs would be necessary for their mobility on a permanent basis. O’Malley J found that if it was not suggested that this level of mobility makes the use of motorised transport unnecessary, the key issue in terms of the statute was whether there is a need to adapt such transport to take account of the particular forms of disablement. He held that these considerations, in the circumstances of this case, go well beyond the question of fairness and are directly relevant to the legal adequacy of the regulations. He found that the issue could be put this way: the regulations exclude some persons who have a severe and permanent disability that greatly limits their mobility and that creates a need for the adaptation of a car used for their transport. Given the terms and intent of s. 92, O’Malley J could not see that this result was within the contemplation of the legislature, or that it comes within the scope of the Minister’s power to formulate “necessary” criteria for the implementation of the section.
O’Malley J held that she would allow the appeals. However, she would not hold the regulation to be invalid in circumstances where the problem was not with what Regulation 3 sets out, but with its under-inclusive nature. She preferred in each of these appeals to quash the refusal of the Board to grant a medical certificate, and to grant a declaration that, in applying the criteria set out in Regulation 3 to the appellants, the respondents failed to vindicate their rights under s. 92 of the 1989 Act.
Appeals allowed.
Both of these appeals relate to the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations, 1994. The regulations are made under s.92 of the Finance Act 1989, as amended, which enables the Minister for Finance to make regulations providing for repayment of excise, road tax and VAT in respect of vehicles and fuel in the case of vehicles used or driven by persons who are severely and permanently disabled.
In each of the two cases the parents of the minor concerned applied for a medical certificate in respect of their disabled child, which could have entitled them to some repayments and remissions of motor vehicle costs. Both applications were unsuccessful, as were the appeals to the respondent Board, because the children (“the appellants”) were deemed not to satisfy the criteria set out in Regulation 3 of the 1994 regulations. This decision was reached notwithstanding the fact that each of the appellants is agreed by all concerned to be “severely and permanently disabled”. The appellants then sought orders of certiorari quashing the decisions of the Board, and a declaration that Regulation 3 is ultra vires the provisions of s.92.
As it is accepted by the respondents that each of the appellants is severely and permanently disabled, it is unnecessary to go into any detail here about their conditions (which are complex in both cases) and will be sufficient to give a brief summary of their needs in respect of mobility.
Alyssa, who was two years old when the proceedings were initiated, uses a prone stander to promote weight bearing and manage her risk of hip dysplasia and hip migration. She uses a walker for walking short distances. She will continue to need the help of specialised equipment to walk short distances as she gets older. Otherwise she will require a wheelchair. She needs specialised toileting equipment, and intermittent catheterisation several times a day. As she has outgrown the standard baby changing facilities in public bathrooms, her parents change her in the back seat of the family car rather than lie her down on a toilet floor. The main objective for her parents, if given the tax concession, would be the purchase of a car with a boot large enough to accommodate Alyssa's equipment and a specialised car seat. She is likely to require assistance with mobility and continence issues throughout her life.
George was seventeen years old when the proceedings commenced. He has a genetic condition which, in his case, has resulted in longstanding, widespread joint and spinal pain which has progressed into a secondary chronic pain syndrome and is severely disabling. He has “multi system complications”. One feature of his condition is that he suffers fluctuations in blood pressure, which causes severe restriction of the use of his lower limbs. A consultant paediatric cardiologist reported that he had significantly limited mobility. George can walk but becomes tired very quickly. A physiotherapy report from March 2017 recorded that he was able to walk 103.5m in three minutes without rest. At the time of assessment, he could walk no more than a few steps on a bad day, and up to half a mile on a good day. However, he is prone to falling, and his parents have been advised by physiotherapists that it is not safe for him to walk outdoors. The HSE has provided him with a wheelchair and he uses it much of the time.
George's mother wishes to get an adapted car, as she finds it extremely difficult to get his wheelchair in and out of her un-adapted vehicle and cannot do so on her own.
It may be helpful to commence with a reference to the legislation that pre-dated the current scheme. Under s.43(1) of the Finance Act 1968, certain duties were not to be charged in respect of a specially constructed or adapted vehicle used by a person who, in consequence of injury, disease or defect, was “wholly or almost wholly without the use of each of his legs”.
That provision was repealed by virtue of s.92(1) of the Finance Act 1989. The section, as amended, currently provides as follows:
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 or the remission 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 10 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...
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