The Board has decided to keep applicants informed from time to time as to the procedures it follows and other developments. This newsletter is therefore the first in a series.
Applications
The Board has accepted applications since December 2002. The number received to date is 773. Thirty of these applications have been rejected as on the face of the documentation the application was outside the Boards terms of reference as laid down in the 2002 Act. The remaining applications are now being processed. The Board must engage in the processes laid down in the Act including the time allowed for all parties to respond in the manner provided. The statutory steps and times allowed for each step laid down in the Act and Regulations occupy a minimum of 16 weeks. To this must be added any time taken for processing the application by the Boards office staff. In some cases the Board, with the cooperation of the applicants and the relevant persons, will be able to reduce this period. It is anticipated that the process will be complete in respect of some applications during the month of April. Hearings and settlement discussions will then commence.
The Board believe that the following points based on its experience to date may be of general interest.
Incomplete application forms.
A high percentage of application forms received by the Board lacked essential information. This prevents the application clearing the first administrative hurdle. Pending the receipt of information the application is allocated a number but is not further processed. Applicants will speed up the process for themselves and others if the application form is fully completed before it is sent to the Board.
Statement of abuse (application form, section 6)
Statements of abuse on which the application is based should be the applicant's own version of what happened. Information conveyed second-hand through a medical report may be of lesser value (with regard to establishing the truth of the events described) compared to a description in the persons own words.
The Board will be better able to assess applications containing first hand statements of abuse expressed in the applicants' own words rather than second hand accounts related in a medical report.
Discovery of documents (application form, section 8)
The Board has received a number of applications in which the Board is asked to obtain a wide range of documents, usually from the Department of Education and/or those who ran a particular institution. The application form allows the Board to assist an applicant to obtain but only in those rare cases where it has not been possible for the applicant himself/herself to access information essential for 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. In particular the Board is not an alternative to general FOI requests from the appropriate authorities.
Applicants are reminded therefore, that it is for the applicant to provide supporting evidence, and that the Board is not authorized to use its powers to collect evidence beyond particular documents which are strictly necessary to decide the application. The Board understands the desire of survivors to fill in gaps in their life story but that task is outside the remit of the Board.
The application form is specific on this point – Section 8 says that the Board will request production of an existing document only where the applicant has been unable to obtain it and where the document is relevant to identity, residence in an institution, or the abuse or injury suffered.
Settlements
It is intended to implement the following arrangements to give effect to the powers conferred by Section 12 of the Act to settle applications generally...
1. 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 consents. The members nominated may vary from time to time.
2. The members delegated will have full powers to settle cases. The members will inform the applicant (or their legal representatives where appropriate) of the award which the members consider should be made by the applying the same principles as would apply at a hearing of an application.
3. Settlement discussions will be conducted between the applicants (if unrepresented) or their legal representatives and solicitor/counsel employed by the Board.
4. The legal representatives of the Board will take their instructions from the delegated members of the Board.
5. The applicant will be entitled personally (if unrepresented) or through his/her legal representative to information on the basis on which any offer is made within the scheme under which the Board operates. This will include details of the weighting used as mentioned in the Regulations under section 17 of the Act.
6. Discussions will be without prejudice on both sides so that if agreement is not reached the application can be heard by the Board without reference to the fact of or the contents of the settlement discussions.
7. 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 Residential Institutions Redress Act 2002. This notification will constitute the notification of an award under the Act. The Applicant will retain his/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.
8. If after any settlement discussions there is no agreement the application will proceed to hearing as if the discussions had never taken place save that the members of the Board instructing the lawyers involved in the unsuccessful discussions 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/her contact with the new decision makers.
9. It is to be noted that the Minister retains the right under S13 (13) to submit any award, including one arising from a settlement, to the Review Committee.
The Board retains the right to vary these arrangements in the light of any further discussions with the stakeholders and practical experience.
Interim awards
The Board shares the views of many of the survivors that the making of interim awards should not distract the Board from its main task but in a small number of cases the personal circumstances of applicants make interim awards necessary. In such cases the Board is now processing interim payments.
