High Court quashes Review Committee decision for failing to apply literal meaning of 'resident' under Redress Act 2002.

Neutral Citation: [2014] IEHC 220

THE HIGH COURT

JUDICIAL REVIEW

[2013 No. 407 J.R.]

BETWEEN

ELIZABETH JONES

APPLICANT

AND

THE RESIDENTIAL INSTITUTIONS REVIEW COMMITTEE

RESPONDENT

JUDGMENT of O’Neill J. delivered on the 2nd day of May 2014

1. The applicant seeks an order of certiorari quashing the decision of the respondent Review Committee dated 7th March 2013, to the

effect, that the applicant was not a resident in an institution within the meaning of s. 7 1(b) and (c) of the Residential Institutions

Redress Act 2002, and was, therefore, not entitled to redress under the Act. A further order is sought remitting the matter to the

respondent Review Committee to be “dealt with in accordance with law”.

Statutory Provisions

2. The long title of the Residential Institutions Redress Act 2002, states that the Act was established “to provide for the making of

financial awards to assist in the recovery of certain persons who as children were resident in certain institutions in the State who

have or have had injuries that are consistent with abuse received while so resident and for that purpose to establish the Residential

Institutions Redress Board to make such awards and to provide for the review of such awards by the Residential Institutions Review

Committee and to provide for related matters.”

3. Section 7 of the Act provides:

” (1)Where a person who makes an application (an “applicant”) 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 injury is consistent with any abuse that is alleged to have

occurred while so resident

the Board shall make an award to that person in accordance with section 13(1).”

The respondent Review Committee was established by s. 14 of the Act “to perform the functions conferred on it under this Act”. This

includes reconsidering decisions of the Redress Board.

Background

4. The applicant was born in 1945. As a young child, she suffered from rickets, as a result of a Vitamin D deficiency, and was

admitted to St. Joseph’s Orthopaedic Hospital for Children, Coole, County Westmeath, where she remained for a period of

approximately nine months. Some time in 1958, when the applicant was 13 years old, she was “taken out of school” by her mother

and returned to the institution. The applicant was not admitted as an in-patient or in receipt of any medical treatment in the

institution during this period. While schooling was available to patients on the grounds of the institution, the applicant did not attend

school or further her education while there. The applicant gave evidence to the respondent committee that during the two years she

spent in the institution, she worked from early in the morning until approximately 10pm every night. Her day began at approximately

6am, when she was awoken by a gong. If she failed to rise immediately, one of the Sisters would throw her and her mattress to the

floor. Her primary duties were to assist with the preparation and serving of three daily meals, as well as cleaning in the dining room,

corridors and operating theatre, and washing up duties. Asked by the committee if she was free to leave the institution during the

day to engage in any personal or leisure activities, the applicant gave evidence to the committee that she was “frightened to leave

because of the consequences”. The applicant gave evidence of one occasion when, after breaking a glass water jug, she felt she had

to “run away” and was subsequently punished for doing so. She was not permitted to return home at Christmas, Easter, on her

birthday or any other holidays, and gave evidence that on the morning of her father’s funeral, she was again thrown out of bed and

made to wait until somebody took her to the funeral mass.

5. The applicant alleges that she witnessed abuse of patients of the institution and that persons who committed some breach of a

rule would have their hair shaved off and be made to wear a sign around their neck which detailed their supposed wrongdoing. The

applicant alleges that during the time she spent in the institution, she was subjected to sexual abuse by older male patients in the

hospital, and that when she reported it to the Sisters, they failed to do anything about it and told her to carry on with her chores.

She also recounted an incident where a priest from the institution allegedly sexually assaulted her. At the hearings before the Redress

Board and respondent Review Committee, the applicant described the lasting effects her time in the institution and the abuse she

suffered has had on her, and psychiatric reports were submitted in this regard.

6. The applicant gave evidence that a sum of approximately £6 per month was apparently paid to her mother in return for her

services. There was no evidence of this payment having been made, apart from what the applicant was told by her mother. The

applicant gave evidence that she herself “didn’t receive any money whatsoever”.

7. The applicant made a claim to the Residential Institutions Redress Board in 2010, and was granted an extension of time for making

such an application under s. 8(2) of the Act. A hearing took place on 7th April 2011, and the Board issued its decision on 19th June

2012. The Board held that the applicant’s claim did “not fall within the terms of the statue for the following reason – it has not been

established to the satisfaction of the Board that the applicant was injured while resident in an institution covered by the said Act or

Orders as required by section 7(1)(c) of the said Act.” The applicant applied to have the matter reconsidered by the respondent

Review Committee on 27th June 2012, and a hearing before the respondent took place on 17th January 2013. The respondent issued

its decision on 7th March 2013. I will now turn to consider this decision in greater detail.

Decision of the Respondent Committee

8. The decision of the respondent outlines that the decision of Board noted that the applicant was not an in-patient at the

institution, which was “the primary purpose of being resident in a hospital that was a Scheduled Institution pursuant to the Act.”

9. After considering all of the evidence, the Committee stated that it was “difficult to accept the argument that the Applicant was

not in employment in Coole. She gave detailed evidence of the work she did there, was in receipt of board and lodging, and payment

for her services appears to have been made to her mother. If she felt that she was not free to leave it seems likely that it was

because it was her mother, rather than the authorities in Coole, who would have prevented her from leaving”. It was found that “in

the ordinary sense of the word the Applicant was ‘resident’ in Coole for the period in question” but the issue for the committee to

decide was whether or not she was ‘resident’ within the meaning of the Act. Having found that the term ‘resident’ where it appears in

s. 7(1) of the Act is “obscure or ambiguous” the Committee applied the provisions of s.5 of the Interpretation Act 2005 which states:

“. . . the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament

concerned, as the case may be, where that intention can be ascertained from the Act as a whole.”

10. The committee decision states that it gained assistance from s. 4 of the 2002 Act, which enables the Minister “to provide for the

insertion in the Schedule of any industrial school, reformatory school, orphanage, children's home, special school which was

established for the purpose of providing education services to children with a physical or intellectual disability or a hospital providing

medical or psychiatric services to people with a physical or mental disability or mental illness in which children were placed and

resident and in respect of which a public body had a regulatory or inspection function”

11. The committee ultimately concluded the following:

“The Committee does not believe that a person who was working in the hospital in receipt of board and lodging, even if

under the age of 18 years and was not there for the purpose of receiving medical services, and did not receive schooling

there can be said to have been resident in the Institution within the meaning of the Act and accordingly the conditions of

s7(1)(b) and (c) have not been complied with the Applicant is not entitled to an award”.

Applicant’s Submissions

12. Counsel for the applicant contends that after finding that the applicant was a ‘resident’ of the institution in the ordinary sense of

the word, the committee erred by going on to state that the word ‘resident’ was “obscure or ambiguous” and by applying the

provisions of s. 5 of the Interpretation Act. In the respondent’s statement of opposition, it is stated that this was a reasonable and

rational approach for the committee to adopt. The applicant contends that the relevant test is not one of reasonableness or

rationality, but one of statutory interpretation. In AG v. Residential Institutions Redress Board [2012] IEHC 492, Hogan J. held:

“. . . a pure question of statutory interpretation and vires and, in this context arguments based on rationality or

reasonableness really do not arise for consideration. It would be no answer, therefore, for the Board to show that its

interpretation of the section was a reasonable one if that interpretation was incorrect as a matter of law: see, e.g., the

comments of Barr J. in Shannon Regional Fisheries Board v. An Bord Pleanála [1994] 3 I.R. 449, 456, those of Clarke J. in

Cork County Council v. Shackleton [2008] 1 I.L.R.M. 195, 215 and by analogy those of Kelly J. in Cork City Council v. An

Bord Pleanála [2006] IEHC 192, [2007] 1 I.R. 761, 768-772. Recalling the time-honoured words of Marshall C.J. in Marbury

v. Madison 5 U.S. 137 (1803), it is, of course, “emphatically the province and duty of the [the judicial branch] to say

what the law is.” As that duty represents a core function of the judicial branch, it is the judicial duty to pronounce on

whether an interpretation of a statute proferred by an administrative agency such as the Board is correct or

otherwise.”

13. The applicant contends that the respondent was not required to go any further than to give the word ‘resident’ its ordinary

meaning, and that it is manifestly incorrect to state that the term as it appears in the Act is obscure or ambiguous. It is further

submitted that on any interpretation of the word, it cannot be said that a person with the applicant’s circumstances could have fallen

outside the contemplation of the Oireachtas in terms of being entitled to redress. The Oireachtas was not in a position, at the time of

drafting the legislation, to specifically identify all those individuals who might be entitled to redress or the various routes that led them

to become resident in a particular institution. It was submitted that the respondent was not entitled to engage in this sort of

speculation after having found the applicant to be resident in the ordinary meaning of the word. Reliance was placed on the Board of

Management of St. Molaga’s N.S. v Sec-Gen of the Department of Education and Skills [2010] IESC 57, in which there was an issue

concerning the interpretation to be given to the word ‘appeal’ as found in s. 29 of the Education Act 1998. The High Court engaged in

a detailed analysis of the overall purpose of the Act and held that the term was more restrictive than a ‘full appeal’. However, the

Supreme Court did not approve of this approach and held:

“Taking an overview of s. 29 it is clear that the words ‘appeal’ and ‘appeals’ are dominant. They appear 21 times,

excluding references to ‘appealed’ and ‘appeals committee’. Further, the decision making body is called an ‘appeals

committee’.

The words in s. 29 are very clear. The term ‘appeal’ is not obscure. It has a plain meaning in relation to procedures. The

concept of an appeal is a full hearing on the merits with the jurisdiction to make a determination on the issues raised. An

appeal goes beyond a review of a decision making process.

As the words of s. 29 are clear, with a plain meaning, they should be so construed. The literal meaning is clear,

unambiguous and not absurd. There is no necessity, indeed it would be wrong, to use other canons of construction to

interpret sections of a statute which are clear. The Oireachtas has legislated in a clear fashion and that is the statutory

law.”

14. The High Court has adopted this approach in subsequent cases including CP v Chief Appeals Officer [2013] IEHC 51, where, citing

the above passage, Hogan J. held:

“The same can be said here. The language is unambiguous and there is nothing absurd in giving an Appeals Officer an

open-ended power to re-open cases in the light of the emergence of new facts or new evidence or changed

circumstances. This conclusion is, moreover, re-inforced by the language of the remainder of the section.”

Respondent’s Submissions

15. Counsel for the respondent submits that the respondent committee found as a fact that the applicant received board and lodging

at the institution and that her mother appears to have received a monthly payment for her services. It is accepted that the applicant

received no schooling at the institution and was not there for the purposes of receiving medical treatment. The respondent found it

“difficult” in those circumstances to accept the argument that the applicant was not in employment at the institution.

16. It is submitted that the respondent was correct to apply the provisions of s. 5 of the Interpretation Act, and provides clear

reasons for doing so. In Monahan v Legal Aid Board [2009] I.R. 458, Edwards J. held:

“Section 5 implicitly recognises the literal rule as the primary rule of statutory interpretation and authorises the courts

to depart from the literal rule and adopt a purposive approach only in clearly defined circumstances. The language of

the Bill is close to that set out in the recommendations of the Law Reform Commission Report on Statutory Drafting and

Interpretation: Plain Language and the Law , (LRC 61-2000), at p. 21, which was largely derived from the judgment of

Keane J. in Mulcahy v. Minister for the Marine (Unreported, High Court, Keane J., 4th November, 1994) where he stated

as follows at p. 23:-

‘While the court is not, in the absence of a constitutional challenge, entitled to do violence to the plain language of

an enactment in order to avoid an unjust or anomalous consequence, that does not preclude the court from

departing from the literal construction of an enactment and adopting in its place a teleological or purposive

approach, if that would more faithfully reflect the true legislative intention gathered from the Act as a whole’.

As such, s. 5 largely reflects the approach adopted by the courts prior to its enactment in any event. The main

departure from the common law position occasioned by s. 5 is the creation of an exception to the general rule where a

literal interpretation would defeat the intention of the Oireachtas. This exception to the literal rule of interpretation now

applies, together with the traditional common law ambiguity and absurdity exceptions.”

17. It is submitted that the respondent was correct to consider the intention of the Oireachtas in respect of the meaning of the term

‘resident’ by reference to the Act as a whole, and that s. 4 of the 2002 Act, sets out that the criteria to be applied in this case

includes a consideration of the function of the institution and the purpose for which children were placed there. It is argued that a

person, such as the applicant, who was working at the institution and in receipt of board and lodging and who was not receiving

schooling or medical treatment, cannot be said to be a ‘resident’ within the true legislative intention.

Decision

18. The decisive issue in this case is whether the respondent was correct in its approach to ascertaining the proper statutory

interpretation of the term “resident” as used in s. 7 of the Act. At the outset of a consideration of this topic, I would immediately

observe that this issue cannot be determined or influenced by a reasonableness or rationality test. Over the years since the

judgement of the Supreme Court in O’Keeffe v An Bord Pleanála [1993] I.R. 39, and before that in Keegan v. The Stardust Tribunal

[1987] ILRM 202, this court has been frequently urged in its consideration of other judicial review grounds i.e legal and statutory

interpretation issues and even natural justice grounds, to assess the legality of the decisions impugned by reference to a

reasonableness or rationality test. I would like to emphatically agree with the passage from the judgement of Hogan J. quoted above

from the case of AG v Residential Institutions Redress Board [2012] IEHC 492 . The reasonableness and rationality test arises only

where there is a challenge to the decision of a public authority on the ground that the decision in question offends the principles set

out by the Supreme Court in Keegan v Stardust Tribunal or O’Keeffe v. An Bord Pleanála, where the decision is that of an expert

tribunal. No such challenge arises in this case.

19. Here, the challenge is confined to a narrow issue of statutory interpretation, and this court must determine whether the

interpretation settled upon by the respondent was correct in law and not whether it was reasonable or can be upheld within an

acceptable margin of appreciation. Having concluded that the circumstances of the applicant came within the term “resident” when

that term was given its natural and ordinary meaning, the fundamental question which arises here is whether they were not obliged to

have concluded the matter on that basis, or were they entitled or obliged to reject the application of the literal meaning of the term

and to go further by invoking s. 5 of the Interpretation Act 2005, to depart from the literal rule of construction and to adopt what

they saw as a purposive interpretation of term “resident”

20. The only basis on which the respondent could lawfully have rejected the literal meaning of “resident” would have been if it was of

the view that the literal meaning, as applied in this case to the applicant’s circumstances, would have had the effect of defeating the

intention of the Oireachtas in enacting this legislation. The decision of the respondent, whilst undoubtedly expressing dissatisfaction

with the outcome of the literal interpretation, does not go near positioning itself on the basis that the intention of the Oireachtas

would be defeated. Its decision, as expressed, seems to have been concerned with achieving the most correct interpretation of the

term “resident”, nor is there any surprise here. A conclusion that the inclusion of the circumstances of this applicant would defeat or

subvert the intention of the Oireachtas in enacting this legislation would indeed be strange.

21. I am quite satisfied that the respondent was bound to apply the literal meaning of the term “resident” when it was apparent that

there was no difficulty, ambiguity or absurdity with the term itself, or with including the circumstances of this applicant within the

term, given its natural and ordinary meaning.

22. The respondent therefore erred in law, by applying s.5 of the Interpretation Act 2005 and embarking on a purposive interpretation

of the 2002 Act.

23. Having made this finding, it is not necessary to embark on any further consideration of the applicant’s status in the institution.

However, if I am wrong in concluding that s. 5 should not have been applied, and that a purposive construction of the term ‘resident’

adopted, the respondent erred in law in its conclusion that the applicant’s status in the institution was that of a person who was

there by virtue of a lawful contract of employment, and therefore fell outside the scope of what was intended by the Oireachtas.

Apart from the fact that the terms of her“employment” prevented her attending school are in direct contravention of the provisions

of the School Attendance Act 1926, the arrangement whereby she was in this institution lacked any of the recognisable elements of a

lawful contract of employment and were more akin to that which would be easily recognisable as a form of slavery i.e involuntary

labour provided with no remuneration given to the person providing the labour, accompanied by extraordinary long hours of work with

little or no time off as of right. Even adopting a purposive approach, I am quite satisfied the circumstances governing the applicant’s

presence in this institution could not have precluded her from redress under the Act.

24. For those reasons, I will grant the relief sought and remit the matter to the respondent Review Committee.