A GUIDE TO THE REDRESS SCHEME UNDER THE RESIDENTIAL INSTITUTIONS REDRESS ACT, 2002
as amended by the Commission to Inquire into Child Abuse (Amendment) Act, 2005
Third edition Issued in December 2005 by The Residential Institutions Redress Board,
Belfield Office Park,
Beech Hill Road,
Introduction 1 – 9
Entitlement to redress 10 – 18
How the redress is assessed 19 – 29
When and how to apply for redress 30 – 47
How the Board deals with an application 48 – 57
Settling an application by agreement 58 – 67
Determination of an application by the Board 68 – 100
Payment of redress 101 – 111
Refusal of application by the Board 112
Right to apply to the Review Committee 113 – 116
Appendix 1: Residential institutions listed in the Schedule to the Act
Appendix II: Additional institutions listed in the Residential Institutions Redress Act, 2002 (Additional Institutions) Order 2004
Appendix III: Additional institutions listed in the Residential Institutions Redress Act, 2002 (Additional Institutions) Order, 2005
Appendix IV: Regulations made by the Minister under the Act
A GUIDE TO THE REDRESS SCHEME UNDER THE RESIDENTIAL INSTITUTIONS REDRESS ACT, 2002 as amended
The Guide to the Redress Scheme originally published by the Board in December 2002 has been supplemented or amended by Newsletters published by the Board, and by the â€œGuide to Hearing Proceduresâ€ published by the Board in April 2003. A revised edition of the Guide to the Redress Scheme was published in October 2004. Part 4 of the Commission to Inquire into Child Abuse (Amendment) Act, 2005, has amended the Residential Institutions Redress Act, 2002, in a number of ways which affect the practice and procedure of the Board with immediate effect. This third edition of the Guide takes these additions and amendments into account and sets out the current practice of the Board in dealing with applications for redress.
The Board retains the right to make additional provisions and/or to amend its procedures from time to time in the light of further experience. All such additions or amendments will be posted on the Boardâ€™s website and otherwise published as considered appropriate by the Board.
The purpose of this Guide
1. The purpose of this Guide is to explain how the Redress Board established under the Residential Institutions Redress Act, 2002 (â€œthe Actâ€) deals with applications for redress. The procedure followed by the Board is largely prescribed by the Act, by Regulations made by the Minister for Education and Science in accordance with the Act (a list of these Regulations is given in Appendix IV to this Guide) and by Part 4 of the Commission to Inquire into Child Abuse (Amendment) Act, 2005. The Board must also comply with all appropriate requirements of the general law. While every attempt has been made to ensure that this Guide complies with these legal requirements, in the event of a dispute it is the law, and not this Guide, which must be followed. The Redress Board will be pleased to send a copy of the Act and the Regulations free of charge to any person who requests them.
2. It must also be pointed out that this Guide does not cover all the circumstances which may arise in the course of dealing with an application or all the matters which may have to be decided by the Board. It is also possible that the procedure followed by the Board will be further modified in the light of experience. The Board has found it helpful to provide new and additional information as to its procedures by means of regular newsletters rather than by issuing new editions of the Guide. Accordingly, this edition of the Guide may be amended or supplemented from time to time by newsletters which will be published on the Boardâ€™s website and copies of which will be available free of charge from the Board. A further edition of this Guide may be published if considered appropriate by the Board.
3. The Board will in any case be pleased to answer any queries relating to its procedures. You may contact the Board as follows:
Postal address: Belfield Office Park, Beech Hill Road, Clonskeagh, Dublin 4.
Telephone: 1 800 200 086 (Freephone) or 01 268 0600.
Fax: 01 268 0025
The general nature of the redress scheme
4. This scheme provides an alternative method of providing redress to those who as children were abused while resident in one or more of the institutions listed in the Act. The making of an application to the Redress Board does not involve the waiver of any right of action for damages which the applicant may have in the civil courts or elsewhere. But if an applicant decides to accept an award of redress from the Board, he or she must at that stage sign a formal waiver giving up certain rights of action which he or she may have against the Department of Education and Science and/or other persons or bodies.
5. You do not need legal advice or representation in order to apply for redress, and you may do so on your own or with the assistance of a relative or friend. If you do decide to seek legal advice to help you with your application and to present your case, the Board will pay the reasonable costs and expenses of these services. The Board must leave the make-up of the applicantâ€™s legal representation to each applicant; but the Board will normally resist any application for costs in respect of more than one solicitor and one barrister.
The Redress Board
6. The Redress Board consists of a Chairperson and ordinary members appointed by the Minister for Education and Science. As provided in the Act, the Board and its members are wholly independent in the performance of their functions.
7. The Board has two main functions. The first is to make all reasonable efforts, through public advertisement, direct correspondence and otherwise, to ensure that persons who were residents of an institution listed in the Act are made aware of the existence of the Board, so that they may consider making an application for redress. It is then the Board’s function in relation to each case in which an application has been made to determine whether the applicant is entitled to an award, and, if so, to make an award in accordance with the Act which is fair and reasonable having regard to the unique circumstances of the applicant. An award made by the Board may be reviewed by the Review Committee set up under the Act.
8. In the performance of these functions, the members of the Board are assisted by ”
(a)The Registrar, Secretary and other members of staff of the Board;
(b)Counsel and solicitors to the Board, and
(c)The Board’s panel of medical advisers.
Annual report to the Minister for Education and Science
. The Board is required to submit to the Minister for Education and Science
(a )an annual report of its activities and particulars of its accounts;
(b)such additional reports on matters relating to the performance of its functions as are requested by the Minister. No report made by the Board will identify any applicant, institution or person referred to in an application. Copies of all reports will be laid before each House of the Oireachtas by the Minister.
ENTITLEMENT TO REDRESS
The main rules of the scheme
10. A person who makes an application for redress must establish four matters to the satisfaction of the Board in order to qualify for an award:
(i) His or her identity;
(ii) His or her residence during childhood (i.e. while under the age of 18 years) in an institution listed in the schedule to the Act;
(iii) He or she was abused while so resident and suffered injury, and
(iv) That injury is consistent with any abuse that is alleged to have occurred while so resident.
Proof of identity
11. An applicant for redress must provide the Board with evidence of his or her identity. For this purpose the Board will normally require an applicant to provide it with the original or a solicitor’s certified copy of any two of the following documents:
(f)Social welfare card or other document;
(g)A recent electricity, gas or other utilities bill, or
(h)Any other official document vouching identity.
An applicant’s identity may also be established by the oral evidence of a responsible person. Where an application is made on behalf of a person who has died since 11 May 1999, the spouse or children of the deceased person may give oral evidence of his or her identity.
The meaning of “abuse”
12. The Act provides that â€œabuseâ€ of a child means
(a) the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child;
(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. The following are some particular examples of abuse for which redress may be payable:
TYPE OF ABUSE
Violent anal or vaginal penetration.
Victim made to masturbate member of staff or perform oral-genital acts.
Sexual kissing; indecent touching of private parts over clothing.
Serious injuries requiring hospitalisation; profound deafness caused by blows to ears.
Severe beating causing e.g. a fractured limb or leaving permanent scars.
Corporal punishment more severe than was legally sanctioned at the time, but leaving no permanent physical signs. Gross over-work involving inadequate rest, recreation and sleep.
Depersonalisation e.g. through family ties being severed without justification or through deprivation of affection.
General climate of fear and apprehension.
Stigmatisation by staff, e.g. through repeated racist remarks or hurtful references to parents.
Severe malnutrition; failure to protect child against abusive placements; inadequate guarding against dangerous equipment in work-place.
Failure to provide legally prescribed minimum of school instruction; lack of appropriate vocational training and training in life skills.
Inadequate clothing, bedding or heating.
13. It is not necessary for a person to have been prosecuted or convicted of any criminal offence in connection with the abuse suffered by an applicant.
The meaning of “injury”
14. The Act provides that “injury” includes physical or psychological injury and injury that has occurred in the past or currently exists. Redress under the Act is payable in respect of any injury which is consistent with any abuse suffered by the applicant while he or she was resident in a specified institution.
The following are some particular examples of injury for which redress may be payable:
NATURE OF INJURY
PHYSICAL OR PSYCHIATRIC ILLNESS
1. Physical injury
2. Physical illness
3. Psychiatric illness
1. Loss of sight or hearing.
Loss of or damage to teeth.
2. Sexually transmitted diseases.
3. Severe depression with suicide attempts.
Post-traumatic stress disorder.
1. Emotional disorder
2. Cognitive impairment/ educational retardation
3. Psychosocial maladjustment
4. Anti-social behaviour
1. Inability to show affection or trust
Low self-esteem; persistent feelings of shame or guilt.
Recurrent nightmares or flashbacks.
2. Literacy level well below capability.
Impoverished thought processes.
Limited vocabulary leading to communication difficulties.
3. Marital difficulties involving sexual dysfunction.
Low frustration tolerance.
Shyness and withdrawal from mixing with people.
4. Substance abuse.
LOSS OF OPPORTUNITY
1. Having to refuse employment opportunity/ promotion
because of illiteracy.
2. Need to concoct a false identity and to live a lie with workmates.
3. Unable to pursue certain occupations, e.g. police, because of â€œrecordâ€.
In every case the Redress Board will have to be satisfied that the particular injury resulted “as a consequence of the abuse” suffered by the applicant.
The meaning of “resident”
15. Redress can only be paid to persons who as children were abused while “esident” in a specified institution. “Resident” is not defined in the Act, but normally means living and sleeping in a particular place for some time. A person who attended an institution only during the day-time will not be regarded as having been “resident” in that institution. In general the Board will consider whether the institution in question may be regarded as the applicant’s home at the time when the abuse occurred.
16. The Act makes three special provisions relating to this “residence” requirement:
(i) “Residence” in an institution includes any case where a child was resident in an institution as a result of having been sent and detained there under the Children Act 1908 (section 1(4)).
(ii) Abuse of a child “in an institution” includes any case in which the abuse took place, not in the institution itself, but while the child was residing or being cared for in the institution and the abuse was committed or aided by a person engaged in the management or supervision of the institution or a person otherwise employed in or associated with the institution (section 1(2)).
(iii) A person who was resident in an institution and then transferred to another place of residence which carried on the business of a laundry and who suffered abuse while resident in that laundry “shall be deemed” to have been resident in that institution” (section 1(3)).
Ineligibility for redres
17. Redress may not be payable to any of the following persons:
1. A person who was not “resident” for the purposes of the Act in one of the specified institutions when the abuse occurred.
2. A person who died before 12 May 1999.
3. A person who fails to make an application in the form prescribed by the Board within the time stipulated in the Act.
4. A person who fails to satisfy the Board that he or she is entitled to redress under the Act.
5. A person who has received damages from a court or a settlement in respect of the abuse and injuries described in the application for redress.
6. A person whose claim for damages in respect of the abuse and injuries described in the application for redress has been rejected by a court or which has been the subject of any other judicial determination (not being a determination concerning the Statute of Limitations or an interlocutory matter).
18. A person, whether or not an applicant for redress, who gives false evidence to the Board may be guilty of a criminal offence. If found guilty, that person is liable –
(a)on summary conviction to a fine not exceeding 3,000 or imprisonment for a term not exceeding six months or to both;
(b)on conviction on indictment to a fine not exceeding 25,000 or to imprisonment for a term not exceeding two years or both.
HOW THE REDRESS IS ASSESSED
19. The awards made by the Board are required by the Act to be “fair and reasonable having regard to the unique circumstances of each applicant”. But the Act also stipulates that in making an award the Board “shall have regard to” Regulations made by the Minister. Under the Act and the Residential Institutions Redress Act, 2002 (Assessment of Redress) Regulations 2002, redress is awarded under four headings, as follows.
(a) Redress in respect of the severity of the abuse and injury
20. An award of redress in respect of the severity of the abuse and the injury suffered by an applicant is determined by a two-stage process. First, the Board assesses the weight to be attached to the different elements that go to make up the experiences of victims of abuse according to the following table:
Weighting scale for evaluation of severity of abuse and consequential injury
Constitutive elements of redress
Severity of abuse
Severity of injury resulting from abuse
Medically verified physical/psychiatric
Loss of opportunity
The Board will first consider the severity of the abuse suffered by the individual applicant and make an appropriate award on a scale of 1 25, with 25 representing the most severe form of abuse. The Board will then, by reference to the medical evidence, assess on a scale of 1 – 30 the severity of the physical and/or psychiatric illness suffered by the applicant as a result of the abuse. It will next perform the same task with regard to the psycho-social sequelae of the abuse. Finally, on a scale of 1-15 it will assess the loss of opportunity suffered by the applicant. In this regard it should be noted that no redress is payable for loss of earnings as such, and the Board will not take into account (or pay for) any actuarial material relating to loss of earnings presented to it by or on behalf of an applicant.
21. These four separate weightings are designed to produce an overall assessment of the severity of the abuse and the injury suffered by the applicant. When they are added together, the Board will “stand back” and look at the case overall to see whether the total assessment reached in this way is reasonable in all the circumstances for the particular applicant; where necessary, it may make appropriate adjustments to the overall assessment.
22. The amount of redress will then be determined by reference to the Board’s assessment of the severity of the abuse and the injury, according to the following redress bands:
TOTAL WEIGHTING FOR SEVERITY OF ABUSE AND INJURY/EFFECTS OF ABUSE
AWARD PAYABLE BY WAY OF REDRESS
70 OR MORE
200,000 – 300,000
150,000 – 200,000
100,000 – 150,000
LESS THAN 25
Up to 50,000
23. Where the abuse suffered by an applicant and the injury arising from the abuse are considered by the Board to be so serious as to constitute an exceptional case which cannot reasonably be provided for within these redress bands, the Board may deviate therefrom. In every such case, the Board is required to inform the Minister of its reasons for so doing.
(b) Additional redress on the principle of aggravated damages
24. Where the injury suffered by an applicant was not restricted to specific acts of abuse, but was exacerbated by the general climate of fear and oppression which pervaded the institution in which he or she was resident, additional redress may be awarded by the Board. Without going into any question of fault on the part of any person or institution, the Board may make such an additional award where it is satisfied that it is appropriate to do so having regard to the exceptional circumstances of the case. Such additional award may not exceed 20 per cent of the redress otherwise payable as a result of the Board’s assessment of the severity of the abuse and the injury suffered by the applicant.
25. In the opinion of the Board, two factors must be taken into account in the application of the principle of aggravated damages in the context of the redress scheme. First, the level of “aggravation” which should attract an additional award must take into account that the very essence of the scheme is to provide redress for the serious hurt suffered by applicants who have been abused. In other words, the “constitutive elements of redress” (set out in paragraph 20 above) establish that the threshold from which the Board must consider whether an applicant has suffered additional hurt is a high one. Secondly, factors which in other cases might be taken to justify an award of aggravated damages will normally have already have been taken into account by the Board in its assessment of the severity of the abuse or of the injuries suffered by the applicant. It is the view of the Board that additional awards on the basis of aggravated damages will only be made in exceptional circumstances.
Accordingly, an additional award based on the principle of aggravated damages will only be made where the Board is satisfied that the manner in which the applicant was abused was so oppressive or outrageous that an award based solely on the constitutive elements of redress does not represent an award which is fair and reasonable having regard to the unique circumstances of the applicant.
26. No additional redress is payable on the principle of punitive or exemplary damages.
(c) Medical expenses
27. An award by the Board may include an award for medical expenses incurred or to be incurred in respect of medical treatment for the injury suffered by the applicant. The award will, for example, include the expense of medical treatment (including psychiatric treatment) for the injury resulting from the abuse which it was reasonable for the applicant to receive in the past and/or which appears to the Board, on the basis of the medical evidence available to it, to be reasonable for him or her to receive in the future. The award for medical expenses will take the form of an additional award assessed on the basis of the evidence available to the Board, and in accordance with the Regulations made by the Minister.
The Residential Institutions Redress Act 2002 (Section 17) Regulations 2002 provide that the Board when making an award may include an additional award in respect of the reasonable expenses of medical treatment which the applicant has received for the effects of his or her injury. The Board may also include an additional award in respect of the reasonable costs of medical treatment which the applicant will receive in the future, but such award shall not exceed 10 per cent of the redress award.
28. The Board may in its assessment of the severity of the injury suffered by the applicant take into account the likelihood that the necessary treatment will have an ameliorative effect on the condition of the applicant in the future.
(d) Other costs and expenses
29. An award made by the Board may also include an award for reasonable expenses incurred in making the application to the Board.
[For further details of the expenses and legal costs payable by the Board, see below paragraphs 76 and 111.
Please note that applicants and their families may also be entitled to funding under the Education Fund set up by the Department of Education and Science in 2002. This fund aims to provide an opportunity for former residents who were denied an education. Further information about the Fund is available from the Education Facilitator, NOVA, 19 Upper Ormond Quay, Dublin 7.]
WHEN AND HOW TO APPLY FOR REDRESS
[For further details with regard to making an application to the Board, please see the “Guide to Application Procedure” published by the Board.]
Time limit for making application
30 An application for redress must be made to the Board within three years of the establishment day. By the Residential Institutions Redress Act, 2002 (Establishment Day) Order 2002, 16 December 2002 was appointed as the Board’s establishment day. Accordingly, the closing date for receipt of applications is 15 December 2005. However, the Board may, at its discretion and where it considers there are exceptional circumstances, extend this time limit. In particular, the Board will extend the time limit where it is satisfied that an applicant was under a legal disability by reason of unsound mind at the time when the application should otherwise have been made, and the applicant concerned makes an application to the Board within three years of the cessation of that disability.
31. An application for redress must be made in writing on a form prescribed by the Board. The Board has prescribed two types of application form, as follows:
General application form: This form must be used in any of the following cases:
(1) Where an application is made by the injured person himself or herself;
(2) Where an application is made on behalf of an injured person who is under the age of 18 at the time when the application is made, and
(3) Where the application is made on behalf of an injured person who is incapable of managing his or her own affairs.
Application form (deceased persons): This form must be used in any case where the injured person has died since 11 May 1999 and an application is made on his or her behalf.
Applications on behalf of children under the age of 18
32. An application on behalf of a child under the age of 18 should normally be made and signed by an adult with parental responsibility for the child â€“ a natural parent, adoptive parent or any other person with legal parental responsibility for him or her. In all such cases the Board will ask for proof of the identity both of the injured person and of the applicant, and will also require to be satisfied that the person making the application is properly entitled to act on behalf of the injured person.
Applications on behalf of adults unable to manage their own affairs
33. Where the injured person is an adult who is incapable of managing his or her own affairs, the application should be made on his or her behalf by a person properly authorised to do so. The Board will accept that a person is so authorised only where he or she provides the Board with appropriate evidence â€“
(a) as to the identity of the applicant;
(b) that the injured person is incapable of managing his or her own affairs, and
(c) that the applicant is entitled to act on behalf of the injured person.
Applications on behalf of a person who died after 11 May 1999
34. Where a person who is or may be entitled to redress has died since 11 May 1999 without making an application, the spouse or children of that person may make an application on his or her behalf. A â€œspouseâ€ for this purpose includes a person with whom the deceased person is or was at a time cohabiting. But only one application may be made in respect of a deceased person.
35. Where an injured person dies after making an application but before the application is settled or determined by the Board, his or her spouse or children may proceed with the application.
Evidence in support of application
36. When making an application using the appropriate form, the applicant must also provide the Board with written evidence o”
(a)his or her identity,
(b)his or her residence in the institution concerned,
(c)the abuse received while so resident, and
(d)the injuries received as a consequence of such abuse.
With regard to (b) (proof of residence in institution) a report entitled â€œReport by School Number and Pupil Number” may be obtained from the Department of Education and Science, Cornamaddy, Athlone, Co Westmeath, which holds records for children who were sent to a residential institution on foot of a court order. If an applicant or his or her solicitor states in a Freedom of Information request to the Department that he or she is seeking evidence of residence to support an application to the Board, the Freedom of Information section will give the matter priority and will send the report within approximately two weeks. This report will normally be sufficient proof of residence and will, where available, be required by the Board.
Allegations of abuse.
37. Where specific alleged abusers are identified their names should appear at section 6 of the application form (“Description of abuse suffered by the Injured Person”); where an application is made on behalf of a person who has died since 11 May 1999, the details should be provided in section 7 of the application form (“Details of Abuse”). In either case, leaving this part of the application form blank where the statement of abuse or other documents identify alleged perpetrators, or simply referring the Board to such statement or documents, is not acceptable. The Board must notify all named individuals against whom abuse is alleged; the assessment whether any person mentioned in passing in the statement of abuse or in other documents accompanying the application form is an abuser is a matter for the applicant, not for the Board. Any application which lacks the appropriate information in the relevant section of the application form will be returned to the applicant.
Medical reports of injuries sustained by applicant
38. The purpose of the medical report is to assist the Board in its task of determining the amount of redress payable with respect to the unique circumstances of the individual applicant, based on the effects on him or her of the abuse suffered while resident in an institution as a child. Accordingly, the report should contain a history of the abuse forming the basis of the application and a description of the immediate and long-term effects of such abuse. Where appropriate, the report should in particular describe –
The nature, severity, treatment and prognosis of any psychiatric disorder;
The nature, severity, treatment and prognosis of any personality disorder;
The presence of any medical condition;
The psychosocial consequences of the abuse;
The general adaptation and global level of functioning of the applicant, and
The loss of opportunity resulting from any of the above or from lack of
The report should also provide, where possible, a history of the pre-injury status of the applicant, and the impact of the abuse suffered by the applicant on his or her pre-existing condition.
The Board will need to be satisfied in respect of each of these matters that the “injuries” arose from, or are consistent with, the abuse suffered by the applicant.
The Board would also appreciate an opinion as to the relative severity of the applicant’s injuries. The report should also address the nature and extent of any treatment to date and, where treatment is recommended, an outline of such treatment and the expected duration of such treatment. If appropriate, an opinion on the applicant’s ability to manage his or her funds would be appreciated.
It may be useful for the person writing the report to have regard to the definition of â”abuse” set out in section 1(1) of the Act (for a summary of this definition see paragraph 12 above).
39. An applicant is not required to produce to the Board any evidence of negligence by an individual person or the employer of that person or by a public body.
40. Where an applicant fails to provide the Board with evidence of one or more of the matters listed in paragraph 36 above, the Board will so notify the applicant in writing, and no further consideration may be given to the application until that evidence has been received by the Board.
41. The written evidence in support of an application may take the form of one or more documents, and should normally be typewritten. The Board will accept hand-written documents only if they are fully legible. Where any supporting evidence is not legible in the opinion of the Board, it will be returned to the applicant and no further consideration may be given to the application until a legible statement has been received by the Board.
42. An applicant may also provide oral evidence in support of his or her application, and may be required to do so by the Board. Where an applicant intends to call witnesses to give oral evidence, he or she must, as soon as possible after making the application, provide the Board with a list of those witnesses, together with an indication of the evidence which they will give. The Board may not be able to arrange a hearing of the application until it has received this information.
43. For the purposes of establishing any of the matters listed in paragraph 36 above, the Board may, on its own behalf or if asked to do so by an applicant, request by notice in writing any person to produce to the Board and to the applicant any existing document in his or her possession, custody or control which relates to such matters. Where the Board is asked by an applicant to make such a request, the Board will do so only where it is satisfied that the applicant has first made all reasonable efforts to obtain the document and that the document is strictly relevant to one or more of the matters raised in the application.
It is only in such cases that the powers of the Board can be relied on. Requesting the Board to get for the applicant either information that can be obtained in the normal course or information which is needed for a purpose other than an application is outside the powers of the Board.
44. A person to whom such notice is addressed shall provide the Board and the applicant with the document specified in the notice if it is in the possession, custody or control of that person. The Board will notify the applicant in writing if the document in question is not provided by the person concerned.
Onus on applicant
45. It is for the applicant to satisfy the Board that he or she is entitled to redress under the provisions of the Act. The more information which the applicant gives to the Board in support of his or her application the more speedily the Board will be able to determine the application.
Service of application and other documents
46. An application for redress and all other documents to be considered by the Board must be served on the Board –
(a)by registered pre-paid post addressed to the Board’s office, or
(b)by delivery to the Board’s office.
Service of the application form by post may be proved by production of a certificate of posting; service by delivery to the Board’s office may be proved by an entry in the Board’s records.
47. An applicant must include in the application form the full address for service of any documents from the Board. Where an applicant is represented by a solicitor, the address for service will be the business address of the solicitor, as stated in the application form.
HOW THE BOARD DEALS WITH AN APPLICATION
Confidentiality of proceedings by the Board
48.The Board will deal with all applications and all matters relating thereto in the strictest confidence. It is a criminal offence for any person, including an applicant or the Board, to disclose information provided to the Board, with three exceptions:
(i) The Board is required to provide the Department of Education and Science with brief details of each application to enable the Department to exercise its legal powers in connection with the Act.
(ii) Any person may disclose information
(a) to a member of the Garda Siochana if the person disclosing the information is acting in good faith and reasonably believes that such disclosure is necessary in order to prevent an act or omission constituting a serious offence, or
(b) to an appropriate person if the person disclosing the information is acting in good faith and reasonably believes that such disclosure is necessary to prevent, reduce or remove a substantial risk to the life or to prevent the continuance of abuse of a child.
(iii) A person, including the applicant or the Board, may disclose a document or other information used in connection with an application to the Board to any body conducting a hearing, inquiry or investigation under statutory powers, or to any other body as may be prescribed by order made by the Minister.
Please note that exceptions (i) and (ii) were made by the 2002 Act and are now referred to for the sake of completeness; exception (iii) is a new exception provided by the 2005 Act which is intended in particular to allow a complaint to the Law Society against a solicitor by an applicant for redress to be more fully investigated.
Acknowledgement of application
49. The Board will provide an applicant with a written acknowledgement of receipt of the application form. This acknowledgement will normally be sent within five days of receipt of the application by the Board and will assign to the applicant a personal reference code which he or she should always use when contacting the Board.
Applications given priority
50. In its consideration of applications, the Board will give priority to applicants â€“
(i) who were born before 1 January 1934, or
(ii) who are at the time when the application is made suffering from a medical illness or psychiatric condition which is life-threatening, as confirmed in writing by a letter from the applicantâ€™s regular medical adviser.
Please note that as from the end of 2005, the Board will give priority under (i) to applicants born before 1 January 1936.
Conduct of application
51. The Board has a general power to make such directions and arrangements for the conduct of the application, including the imposition of conditions, as it considers appropriate in all the circumstances.
Further information from the applicant
52. On consideration of an application and any supporting evidence, the Board may request further information or further evidence from the applicant. An applicant should note that if he or she fails to comply with reasonable requests for information or otherwise fails to give the Board full assistance in connection with the application, consideration of the application by the Board may be delayed and it is possible that the Board will not be satisfied that he or she is entitled to redress.
Enquiries of police and other bodies
53. In its consideration of an application, the Board may make its own enquiries as to any of the matters mentioned by the applicant from the Gardai/police, medical authorities and other relevant persons or bodies.
Notification of relevant person
54. The Act and Regulations made by the Minister require the Board, as soon as may be practicable following receipt of an application, to take such reasonable steps as are necessary to inform a â€œrelevant personâ€ that the application has been made. A â€œrelevant personâ€ for this purpose is â€“
(a) any person who is referred to in the application as having carried out the acts of abuse described by the applicant, and
(b) in the case of any institution referred to in the application as being the institution in which the those acts of abuse were carried out, the person who is concerned with the systems of management, administration, operation, supervision, inspection and regulation of such institution as the institution concerned may determine and specify in writing to the Board.
55. Where the Board so informs any relevant person, it will invite him or her to provide it with any evidence in writing concerning such application as the relevant person considers appropriate. For this purpose, a relevant person will be entitled, on request in writing to the Board, to receive a copy of the application form together with a copy of
any written evidence attached to that form which relates to the identity of the injured person or his or her residence in an institution or which concerns the circumstances of the abuse suffered by the injured person. The Board does not send to a relevant person –
(i) any information which will or may disclose the present whereabouts of the injured person;
(ii) a photograph of the injured person, or
(iii) any medical reports provided by or on behalf of the injured person.
56. Where the Board receives written evidence from or on behalf of a relevant person, it will forward a copy of that evidence to the applicant.
Abandonment of application
57. A person who wishes to discontinue his or her application for redress may do so at any time by so notifying the Board in writing.
SETTLING AN APPLICATION BY AGREEMENT
58 The Board will delegate two of its members to consider settlement of applications without a hearing in cases where it appears appropriate to the Board and the applicant has so consented in writing. The members nominated may vary from time to time. The members delegated (the “settlement panel”) will have full powers to settle cases. The applicant’s legal representatives will be informed of the award which the settlement panel consider should be made by applying precisely the same principles as would apply at a hearing of an application (see above paragraphs 19-28).
59. The applicant’s consent will normally be shown by ticking the appropriate box in section 11 of the Application Form. If this box is not ticked, the Board will seek other written confirmation that the applicant wishes to consider the possibility of settling his or her application without a hearing.
It is the Board’s practice not to consider for settlement but to require a hearing in the case of any application by a person who is not legally represented.
60. Where an applicant is legally represented, an application will not be considered for settlement unless the settlement panel –
(i) has obtained a report from a medical adviser to the Board in accordance with section 10(11) and (12) of the Act, and
(ii) is satisfied that
(a) “the evidence in relation to an application establishes that the applicant is entitled to redress under the Act, and
(b) it is not necessary in the interests of justice“
(i) to allow a relevant person either to give oral evidence to the Board or to cross-examine the applicant or any person giving evidence on behalf of the applicant, or
(ii) to allow the applicant to cross-examine the relevant person or any person giving evidence on behalf of the relevant person.
1. Settlement discussions will be conducted between the applicant’s legal representatives and solicitor/counsel employed by the Board. The legal representatives of the Board will take their instructions from the Board’s settlement panel. The applicant will be entitled through his or her legal representative to information on the basis of which any offer is made; this will include details of the weighting used by the settlement panel.
62. Settlement discussions will be without prejudice on both sides, so that if agreement is not reached the application can be heard by a different division of the Board without reference to the fact, or the contents, of the settlement discussions.
63. In the event of agreement, the Board will as soon as may be thereafter notify the applicant in writing of the details of the matters agreed in the manner set out in section 13 of the 2002 Act. This Notice of Award will constitute the notification of an award under the Act.
64. Where agreement has been reached and a Notice of Award has been issued by the Board, the applicant retains his or her full rights to accept, reject or send the award for review as provided in section 13 of the Act within the period specified in the Act. If no written reply has been received by the Board within one calendar month of the date of receipt of the Notice of Award by the applicant, he or she will be deemed to have rejected the award.
65. Where an applicant accepts a settlement award:
(i) He or she must agree in writing to waive any right of action which he or she may otherwise have had against a public body or a person who has made a contribution under section 23(5) of the Act, and to discontinue any other proceedings instituted by the applicant against any such person or body that arise out of the circumstances of the application before the Board. No redress will be paid to an applicant until such a waiver signed by the applicant has been received by the Board
(ii) Costs will be awarded on the same basis and using the same procedures as if the application had been determined following a hearing by the Board.
66. If after any settlement discussions there is no agreement, the application will proceed to hearing as if the settlement discussions had never taken place, save that the members of the Board who formed the settlement panel shall be disqualified from sitting on the division of the Board hearing the application. Further the fact of previous discussions or any details thereof shall not be made known to the Board members forming the division of the Board hearing the application. This duty of confidentiality will extend to any legal adviser involved in the negotiations in relation to his or her contact with the new decision makers.
The hearing will not take place on the same day as the settlement discussions; a separate date for the hearing will be scheduled by the Board’s Registrar.
Applicants are specifically advised that the members of the Board who hear the application may take a different view of the application and make an award which is less than the amount of the settlement. It is, of course, also possible that their award will be higher than the settlement amount.
67. It is to be noted that the Minister retains the right under section 13(13) of the Act to submit any award, including one arising from a settlement, to the Review Committee.
Last edited by Marie-Therese O’ Loughlin (2007-04-23 10:57:18)