The families of two disabled children have won a Supreme Court appeal challenging a refusal to allow them avail of a tax rebate scheme for specially adapted cars.
Ms Justice Iseult O'Malley, on behalf of a five-judge Supreme Court, quashed the refusal of the Disabled Drivers Medical Board of Appeal to grant a medical certificate permitting the parents of the two children to avail of a scheme which allows the severely disabled or their guardians VAT and VRT back on the purchase of a specially adapted vehicle or VAT back on the cost of adapting a vehicle.
She granted a declaration that in applying criteria set out in the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations 1994, the board of appeal, the Minister for Finance and the State failed to vindicate their rights under the 1989 Finance Act which allows the Minister make such regulations.
The families had challenged the appeal board's original decision in the High Court and lost. They appealed to the Court of Appeal and again lost.
They got permission to bring a further appeal to the Supreme Court which unanimously allowed the appeal today.
The two children involved, from separate families, were two and 17 years of age when the High Court challenges were brought in 2018.
The first, a girl, suffers from a number of conditions which mean she needs specialised equipment to walk or otherwise will require a wheelchair. She also needs specialised toileting equipment and, having outgrown public bathroom facilities she would have to lie down on the toilet floor. The parents need a special vehicle so they can change her in it.
The second, a boy, has a genetic condition and can only walk short distances. He is prone to falling and his parents have been advised by physiotherapists that it is not safe for him to walk outdoors. He uses a wheelchair much of the time.
Ms Justice O'Malley, in her judgment, said the source of the dispute between the families and the respondents lay in the wording of the Finance Act (Section 92.2) in relation to the Minister’s power to implement regulations to provide for criteria for tax back "including such further medical criteria in relation to disabilities as may be considered necessary.”
She disagreed with the Court of Appeal analysis in relation to what she said was the conferral of a discretion on the Minister to choose who among the severely and permanently disabled should benefit from the scheme.
To construe the provision of the legislation as permitting the Minister to make what could, in effect, amount to a personal choice as to the qualifying conditions, would be to fall foul of the principles in legal authorities on the power of the Oireachtas to make laws under the Constitution, she said.
One would have to ask what the purpose of the legislature might be if it permitted discrimination whereby regulations could be prescribed that only persons suffering from a specified medical condition, such as cerebral palsy, could qualify, she said.
If the motivation behind the criteria adopted was the saving of public money by reducing the numbers of people entitled to benefit - though there was no evidence there was, in fact, such a motivation - it would not be authorised by the relevant part of the legislation, she said.
While the failure of the board of the appeal to explain its decisions could be sufficient to dispose of the case, the judge said the more fundamental question related to the regulations in the context of vehicles needed by people whose mobility is severely restricted.
The key issue in terms of the law was whether there is a need to adapt vehicles to take account of particular forms of disablement, she said.
Those considerations, in these cases, went well beyond the question of fairness and are directly relevant to the legal adequacy of the regulations. The regulations exclude some persons who have a severe and permanent disability that greatly limits their mobility which creates a need for an adapted car.
The judge could not see this result was within the contemplation of the legislature or that it came within the scope of the Minister’s power to formulate “necessary” criteria for the implementation of this part of the Finance Act.