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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> O'G -v- The Residential Institutions Redress Board [2015] IESC 41 (15 May 2015)
URL: http://www.bailii.org/ie/cases/IESC/2015/S41.html
Cite as: [2015] IESC 41
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Judgment
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THE SUPREME COURT Record No. 050/2013 Denham C.J. Hardiman J. Clarke J. Dunne J. Charleton J.
A. O’G Applicant/Appellant and
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:-
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:
(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:
(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.
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:-
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.” 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 decision pursuant to section 8(2) of the Act of 2002, and also took into account irrelevant considerations. Submissions 8. The Court received written and oral submissions on behalf of the appellant and the Board. Statute 10. Section 1 defines the term “abuse” as follows:-
(b) the use of the child by a person for sexual arousal or sexual gratification of that person or another person, (c) failure to care for the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare, or (d) any other act or omission towards the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare, and cognate words shall be construed accordingly.” (a) to make awards that are fair and reasonable having regard to the unique circumstances of each applicant; (b) to make all reasonable efforts, through public advertisements, direct correspondence with persons who were residents of an institution, and otherwise, to ensure that persons who were residents of an institution were made aware of the function of the Board; (c) to ensure as far as practicable that the hearings were conducted as informally as possible having regard to all the circumstances. 12. An important factor in the functions of the Board is that, pursuant to s. 5(3)(a) of the Act of 2002, when the Board is considering an application it “shall not address any issue of fault or negligence arising out of evidence given in an application under [the] Act.” 13. There is an entitlement to compensation if certain basic conditions are met. Thus, pursuant to s. 7(1) of the Act of 2002, where a person who makes an application for an award to the Board establishes to the satisfaction of the Board:- (a) proof of his or her identity;
(b) that he or she was resident in an institution during his or her childhood, and
(c) that he or she was injured while so resident and that the injury is consistent with any abuse that is alleged to have occurred while so resident, then the Board shall make an award to the person. 14. Further, pursuant to s. 7(5) of the Act of 2002, an applicant shall not, when presenting an application to the Board, be required to produce to the Board any evidence of negligence by the person referred to in the application, the employer of that person or a public body. 15. At the core of this case is s. 8 of the Act of 2002, which relates to the time within which applications should be made. Section 8(1) provides:-
18. The institutions specified in the Act of 2002 are set out in the Schedule to the Act. The appellant was resident in such institutions and so no issue arises on this factor. 19. The power of the Board to extend time within which an applicant may apply has now been amended. The Residential Institutions Redress (Amendment) Act, 2011 provides that s. 8 of the Act of 2002 is amended by inserting the following:-
(5) …” Determination of the Board
they are now residing in 2005 and matters improved. Between 2002 and 2005 they had a television in the houses in which they lived but the [appellant] did not watch the news, nor does she read newspapers to any particular extent, although she did buy the [local paper] from time to time. In reply to her solicitor she agreed that she was essentially stranded in the house with young children at the material time. When questioned by counsel on behalf of the Board she stated that while [A.] had an asthma problem between 2002 and 2005, [B.] her son, did not have any health difficulties. As regards her assertion that she had suffered from depression, when questioned as to whether between December of 2002 and December of 2005 she ever attended any doctor to discuss the problem she stated that she didn't because she had learned to hide it. She agreed that no diagnosis of depression had been made during the relevant period. She was able to read and write and there was a television and a radio in the house in which she was living during the relevant period. As regards her health, she stated that during in the period extending between December of 2002 to December of 2005 she would have attended her doctor with colds and would also have attended with her children when they had conditions which required medical assistance, but at no time during that period did she state to her doctor that she was suffering from depression or going through a bad time. When queried as to whether she could point to anything in particular which might have prevented the existence of the Redress Board coming to her attention during the relevant three year period she replied that she could not. When questioned by Dr. Pilkington, Board member, as to when the existence of the Redress Board had actually come to her attention and in particular that part of her statement which stated that between 2002 and 2005 she had been struggling to cope with the institutional abuse issue as it was all over the media her evidence was that what was stated in that statement was incorrect and that it was in 2008 that she found out about the Redress Board. This issue was also subsequently dealt with in the letter of the 16th of June, 2011 from the [appellant’s] solicitor. The above constitutes the essential documentary and oral evidence provided by and on behalf of the [appellant] in relation to which the Board must decide whether or not to grant her application for an extension of time in which to bring her substantive application for redress pursuant to the provisions of Section 8(2) of the 2002 Act. In considering applications under Section 8(2) of the Residential Institutions Redress Act, 2002, the Board must have regard to the provisions of Section 8(1) of the Act which are clear and unambiguous. Section 8(1) sets out the general rule in relation to the limitation period within which applications to the Redress Board must be made. The sub section states that ‘An applicant shall make an application to the Redress Board within three years of the Establishment Day’ and by the Residential Institutions Redress Act, 2002 (Establishment Day) Order, 2002, the 16th of December, 2002 was appointed as the Board's Establishment Day. Accordingly, the closing date for receipt of applications was fixed as the 15th day of December, 2005. However, the Board may, under Section 8(2) of the Act ‘at its discretion and where it considers there are exceptional circumstances, extend the period referred to at sub section (1).’ There is no definition of ‘exceptional circumstances’ included 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 or forming an exception; out of the ordinary course, unusual, special.’ The same dictionary defines an ‘exceptional case’ as one which is ‘excepted, a particular case which comes within the terms of a rule, and to which the rule is not applicable; a person or a thing that does not conform to 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 definitions outlined provide a useful framework from which it is clear that it would be inappropriate for the Board to apply a test of uniqueness in these cases. Accordingly, therefore, when considering applications for an extension of time under Section 8(2) of the 2002 Act, the Board will determine each application according to its individual merits and particular circumstances. In this respect, the Board does not consider that it is possible to define in advance what circumstances might be considered exceptional. However, such an approach does not prevent the Board from envisaging or surmising what sort of individual circumstances in a particular case might be considered exceptional, for example the effect or impact of mental or physical health problems or conditions on a particular individual; 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 types of 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. The Board is 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 Section 8(2) rather than the test of exceptional circumstances. However, lack of knowledge may have arisen in the context of other factors such as those described above, and in that sense, exceptional circumstances may arise. In her application for an extension of time the applicant has stated in evidence, and the Board accepts, that she was not aware of the existence of the redress scheme prior to 2008. However, as already pointed out, the Board is of view that ignorance of the existence of the scheme and/or closing date in and of itself, does not constitute exceptional circumstances. The existence of the Redress Board and the closing date by which applications were to be made were widely advertised by the Board. Advertisements were placed on all national broadsheet and tabloid newspapers, as well as in the main provincial newspapers. One the newspapers in which advertisements were placed is the [local paper], which is the newspaper which the applicant stated she read. Advertisements were also placed on RTE television, Network 2, Sky One, Sky News, TV3 and TG4. The Redress Board also placed advertisements on all national and major local radio stations. During the period 2002 up to the 15th of December, 2005 there was widespread publications of the existence and functions of the Redress Board in order to bring its existence and functions to the attention of the greatest possible number of potential applicants. However, notwithstanding the level of advertisement and publicity which attached to the Redress Board during that period its existence did not come to the attention of a significant number of potential applicants who could have applied, and in this respect the applicant's circumstances are not exceptional. As pointed out already, if the Oireachtas intended that all such applicants be accepted, the Board considers that it would have employed a state of knowledge test in Section 8(2) rather than the test of exceptional circumstances. The fact that the applicant just did not become aware of the existence of the Board alone cannot alone comprise exceptional circumstances within the meaning of Section 8(2) of the Act, and given the several methods employed by the Board to publicise the existence of the redress scheme and the closing date by which applications were to be received the Board considers that it complied with the provisions of Section 5 of the 2002 Act as regard its advertisement obligations. While [A.O’G.] gave evidence that she felt to a large extent isolated in a remote cottage in the country during the period during which she could have applied for redress the reality of the situation is that during that period, which extended up to July of 2005, there was a television and radio in the house, and the [local paper], one of the newspapers in which the Board had advertised, also came into the house on a weekly basis. It is also of significance that she moved to a less isolated dwelling in July of 2005, approximately five months prior to the final date by which applications could have been made. She also complains that during the relevant period she suffered from depression, and was prone to bouts of crying, staying in bed and not getting the house work done. However it is noteworthy that she did attend her general practitioner from time to time during that period in relation to her own medical needs and also those of her children. At no time during the relevant period did she bring to the attention of her general practitioner that she thought she was suffering from depression, and the Board takes the view that if her mood was causing significant difficulties or disability for her during that period she would have brought this to the attention of her general practitioner for the purposes of being prescribed appropriate medication or treatment. This did not happen, and the Board cannot take the view that the applicant was significantly 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. It is also relevant that when specifically queried by counsel on behalf of the Board as to whether she could point to anything in particular which would have prevented the existence of the Redress Board coming to her attention during the relevant three period she replied that she could not. In her report of the 14th of January, 2011 Dr. Mary McGuire, Consultant Psychiatrist, states that since her marriage the [appellant] has tried to cope with psychological distress but unfortunately has developed significant depressive symptomotology. She goes on to state because of her distress, social isolation and active suppression of memories of her childhood she had been unable to present her claim to the Redress Board during the allotted time scale. Dr. McGuire offers the opinion that her ongoing psychological problems impaired her capacity to take such a case. The Board, however, having had the opportunity to observe the applicant while giving her evidence, and also having had the benefit of all documentation presented to it, cannot take the view that the [appellant] was so affected by psychological distress, social isolation or depressive symptomotology during the period extending 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. The [appellant] is able to read and write, had access to radio and television in the houses in which she lived, had access to a local newspaper in which the existence of the Redress Board was advertised, and at no time brought to the attention of her general practitioner during that period the existence of any disabling or debilitating depressive condition. In addition thereto, while her daughter may have suffered from asthma during the first three years of her life, the Board again cannot take the view that this condition was so serious as to have prevented the existence of the Redress Board from coming to the attention of the applicant. Accordingly, taking all relevant factors into account, the Board is not satisfied that the [appellant] has established the existence of exceptional circumstances for the purposes of Section 8(2) of the 2002 Act and refuses her application for an extension of time in which to bring her substantive application for redress. No evidence has been adduced that the [appellant] was under a legal disability by reason of unsound mind at the time when the substantive application should have been made, and the Board has not considered the application for an extension of time under the provisions of Section 8(3) of the Act.” 22. A medical report was filed on behalf of the appellant by Dr. M. McGuire, a consultant psychiatrist. The report recites the appellant’s early years in institutions. She describes incidents which the appellant had told her had occurred in the institutions. Dr. McGuire reported on psychological sequelae of the incidents and other matters as follows:- “Psychological Sequelae of Incidents [A. O’G.] stated that she never had any self confidence and has always lacked self esteem. She does not trust anybody and ran away from everything she was supposed to do. She continues to experience frequent flashbacks to the incidents in question and feels very claustrophobic and anxious when these thoughts come into her head. Her life went out of control when she left Institutional Care and she became involved in various relationships when she was 15 years old. She said that she just wanted people to like her and became involved in ‘one night stands’ so that these boys would like her. She drank alcohol heavily and took an overdose of tablets when she was 16 years old. She spent 24 hours in the County Hospital. One week after the overdose she experienced a miscarriage at 6 weeks gestation. She became pregnant when she was 16½ years old with her present husband and married when she was 18 years old. She said that her marriage has always been troubled and that she believes she married for security. Her husband comes home from work and finds her crying all the time. He then becomes upset and because of this she has tried to conceal her depressive symptoms. She feels that "she is in a rut". Her weight increased dramatically to 18 stone but she has managed to lose 5 stone in the past year. Her marital relationship is in difficulty at the moment. She feels unable to discuss sex education with her 12 year old son without breaking down and crying. She has experienced major depressive symptoms intermittently since childhood but in a sustained way for the past few years. She is very fond of her three children who range in age from 12 to 3 years respectively. Past Medical History [A. O’G.] stated that she has never told her GP about her depressive symptoms as she is frightened that she will be prescribed medication. She does not wish to take medication as her mother who has an alcohol problem has allegedly been misusing prescribed medication for years. She has no physical illnesses. Reason for Lateness of Claim to Redress Board: [A. O’G.] stated that her 2nd child was born in April 2002 and her older boy was 3 years old. She only left the house to go to the supermarket or play school and was not aware that the Redress Board had been instituted. A friend told her about it in 2008. She obtained further information from a solicitor in [a nearby town] in 2009 but did not feel able to go through with it because she would have to recount all the details of the incidents which had befallen her in childhood. She feared that nobody would believe her as [Sr. L.] allegedly did not believe her when she complained about the incidents. She actively tried to suppress memories of the abusive incidents. Mental State Examination on the 15.12.2010: [A. O’G.] is a 29 year old married lady who looks older than her years. She was very distressed during the interview and cried inconsolably regarding her life situation. Her mood is objectively and subjectively depressed. She denied any suicidal ideation or thoughts of self harm. She said that at times she feels hopeless but thoughts of her children prevent her from considering suicide as an option. There is no disorder of thought or perception and her cognitive state was normal. Conclusion: [A. O’G.] has experienced a very traumatic childhood and entered into marriage with a much older man with whom she became pregnant when she was 16½ years old. Her misuse of alcohol, rebelliousness and promiscuity are significant sequelae of childhood abuse. Since her marriage [A.O’G.] has tried to cope with her psychological distress but unfortunately she has developed significant depressive symptomatology. She is attending a Psychotherapist who deals with Adult Survivors of Childhood Abuse and it is to be hoped that this will be beneficial for her. Nevertheless, [A. O’G.] has serious mental health problems but is making a brave attempt to cope with these. I have advised her to confide in her local GP and to be referred to the local Mental Health Service. Because of [A.O’G’s] psychological distress, social isolation and active suppression of memories of her childhood, she was unable to present her claim to the Redress Board during the allotted time scale. In my opinion her ongoing psychological problems impaired her capacity to take such a case. The emotional neglect and attempted at sexual abuse endured by her during her childhood have had a major negative impact on her ability to function.” 24. At the oral hearing it was accepted that in fact the appellant did not learn of the Redress Scheme until 2008. Decision Stare decisis “Exceptional circumstances” 28. The Court was informed that the Board had applied the test liberally, that 80% of the applicants under s. 8(2) of the Act of 2002 were successful. Counsel illustrated “exceptional circumstances” as interpreted by the Board under s. 8(2) as including the impact of mental problems, family circumstances, communications and legal advice. 29. The Act of 2002 was described in the Long Title as being:-
31. The process was “no fault”. Section 7(5) provided that an applicant shall not be required to produce to the Board any evidence of negligence on the part of the person referred to in the application, by the employer of that person, or a public body. 32. The Act provided that applications be made to the Board within a set time. However, the Board was given discretion in s. 8(2) of the Act of 2002 to extend the time for such application at its discretion where there are “exceptional circumstances”. 33. The Act of 2002 is a remedial Act and should be so interpreted. 34. In their own determination the Board stated that it would “determine each application according to its individual merits and particular circumstances”. 35. The Board envisaged the sort of circumstances which might be exceptional as:-
37. The only expert evidence before the Board was that of Dr. Mary McGuire, consultant psychiatrist. This was the only medical evidence before the Board. There was no contrary psychiatrist evidence before the Board. I do note, however, that a member of the Board, Dr. Ruth Pilkington, is a medical doctor. However, the Board gave no reason to reject the evidence of Dr. McGuire. The Board did not address specifically the evidence of Dr. McGuire. Indeed, it would not have been appropriate for the Board to do other than accept the evidence of Dr. McGuire, and act upon it, without making clear to the appellant in advance that there was to be a challenge to that evidence, and indicating the basis on which any such challenge was to be made. The decision of the Board must, therefore, be taken to have been required to be based on an acceptance of the analysis of Dr. McGuire. 38. Dr. McGuire’s extensive report was before the Board. She concluded, as set out above, but repeated for clarity:-
40. Applying the criteria for “exceptional circumstances” given by the Board itself, to the findings of Dr. McGuire, it is clear that they meet the test of exceptional circumstances. The appellant’s personal family situation, her isolation, her psychological distress suffered as a consequence of her childhood in the institutions, her active suppression of memories of her lifetime in the institutions for many years, the fact that she could not cope with the memories until she received counseling, that she could not apply to the Board until she had received counseling, her health difficulties, were all prevailing factors at the relevant time. 41. In addition, irrespective of the criteria given by the Board itself, the decision of the Board was irrational on the evidence before it. On the evidence there was only one conclusion to which the Board could arrive. 42. The Board did not inform the appellant prior to its conclusion that it had concerns as to Dr. McGuire’ report. In those circumstances, the giving of reasons alone would not have rendered the proceedings fair. 43. I am satisfied that the Board erred in its exercise of discretion, and that it should have extended time for the appellant’s application. I would allow the appeal. 44. This decision is of importance to the parties. However, in general it is of historic relevance only, as the jurisdiction of the Board to extend time for applications has been closed by the Residential Institutions Redress (Amendment) Act, 2011, which amended the Act of 2002 by inserting s. 8(4), which provides that the Board shall not consider an application that is made after the 17th September, 2011.
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