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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Nua Healthcare Services Ltd v Commissioner for Valuation; Redwood Extended Care Facility v Commissioner For Valuation (Approved) [2025] IEHC 197 (21 March 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC197.html Cite as: [2025] IEHC 197 |
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APPROVED
AN ARD-CHòIRT
THE HIGH COURT
[2025] IEHC 197
Record No. 2024/1006SS
NUA HEALTHCARE SERVICES LIMITED
APPELLANT
-AND-
COMMISSIONER FOR VALUATION
RESPONDENT
AN ARD-CHòIRT
THE HIGH COURT
Record No. 2024/950SS
REDWOOD EXTENDED CARE FACILITY
APPELLANT
-AND-
COMMISSIONER FOR VALUATION
RESPONDENT
JUDGMENT of Mr. Justice Conleth Bradley delivered on the 21st day of March 2025
INTRODUCTION
Preliminary
1. The importance of the law of rating, and specifically, the ÔexemptionÕ from rating, and the divergence of the apex courts of two common law jurisdictions, was extra-judicially recognised by Mr. Justice Ronan Keane in the first edition of the Law of Local Government in the Republic of Ireland [1] when he observed as follows, at p. 289 of that seminal textbook:
"The subject of exemption from rating is one of considerable difficulty and obscurity even by the standards of our law of local government. Some of the difficulty springs from the uncertainty which persisted for many years as to the correct statutory basis of exemption from rating. Even to-day, as we shall see, uncertainty persists to the extent that the Supreme Court and the House of Lords have taken wholly divergent views as to what that basis is".
2. Developments since the first edition of this leading textbook have resolved most of the uncertainty and disputes referred to by Mr. Justice Keane and, of course, the rating system is no longer the principal source of revenue for local authority expenditure (domestic rates were abolished by the Local Government (Financial Provisions) Act 1978 and commercial rates amount to approximately one fifth of annual current spending with the majority of local government funding coming from the Local Government Fund). Much of the uncertainty referred to by Mr. Justice Keane centred on the interpretation of the grounds for exemption from rates in, inter alia, sections 63 and 64 of the Poor Relief (Ireland) Act 1838. Schedule 1 of the Valuation Act 2001 ("the 2001 Act"), providing for the repeal of various enactments, sets out the various statutory provisions which had addressed the valuation process in Ireland from the 19th to the 21st century, resting with the 2001 Act. Sections 63 and 64 of the Poor Relief (Ireland) Act 1838 were repealed by section 8 and Schedule 1 of the 2001 Act which provided a new legislative architecture for rating law in Ireland. Patrick Butler SC in the second edition of Keane on Local Government [2] at p. 347 makes the point that "[a]ny such dispute is now of historical interest in that the statutory basis for exemption is section 15 of the Valuation Act 2001 and [S]chedule 4 thereof".
3. These proceedings concern those latter provisions and raise a question in relation to the interpretation of Schedule 4 of the 2001 Act which, as just referred to, now provides for an ÔexemptionÕ from rates under the sub-heading ÔRelevant Property Not Rateable.Õ (Section 14 and Schedule 3 of the 2001 Act refer to ÔRelevant PropertyÕ that is rateable).
4. Specifically, the context is whether the exempted provisions in Schedule 4, reference number [3] 14(b) of the 2001 Act apply to: (i) a 5-bedroom dormer bungalow in Kiltinan, County Tipperary (between Fethard and Clonmel) which is a Ôdesignated centreÕ for children with disabilities operated by Nua Healthcare ("Nua"); and (ii) a two-storey detached property located on the outskirts of Stamullen in County Meath which is a Ôdesignated centreÕ [4] for adults with disabilities operated by Redwood Extended Care Facility Unlimited Company ("Redwood").
5. The issue of statutory interpretation common to each of these appeals is quite net. Indeed, ultimately it could be said to come down to the interpretation of the following four words "out of moneys provided" in Schedule 4, reference number 14(b) of the 2001 Act.
6. The operative provisions in Schedule 4, reference number 14 (a) and (b) of the 2001 Act provide as follows:
"Any land, building or part of a building occupied for the purpose of caring for elderly, handicapped [5] or disabled persons by a body, being eitherÑ
(a) a body which is not established and the affairs of which are not conducted for the purpose of making a private profit from an activity as aforesaid, or
(b) a body the expenses incurred by which in carrying on an activity as aforesaid are defrayed wholly or mainly out of moneys provided by the Exchequer other than a body in relation to which such defrayal occurs by reason of the Nursing Homes Support Scheme Act 2009 ."
7. These proceedings, therefore, concern whether the Valuation Tribunal ("the Tribunal") was correct in determining a nil valuation for the properties operated by Nua and Redwood and whether each comprised "land, building or part of a building occupied for the purpose of caring for elderly, handicapped or disabled persons by a body the expenses incurred by which in carrying on an activity as aforesaid are defrayed wholly or mainly out of moneys provided by the Exchequer other than a body in relation to which such defrayal occurs by reason of the Nursing Homes Support Scheme Act 2009. "
Background
10. The legislative machinery and procedure in the 2001 Act provide for a statutory appeal from the decisions of the Valuation Tribunal. An appeal to the High Court lies by virtue of section 39 of the 2001 Act on a point of law by way of case stated and the court has powers to reverse, affirm or amend the subject determination and to remit the matter to the Tribunal with its opinion.
11. The principles which govern my jurisdiction on this statutory appeal have been the subject of several decisions of the Superior Courts and are now well-settled.
12. It is for the Tribunal to make findings of fact and the jurisdiction of the High Court extends to determining disputed questions of law arising on the case stated: see the judgment of the Court of Appeal (Barniville P., Collins (Maurice) J. and Haughton JJ.) in Eurolink Motorway Operation Limited v Commissioner of Valuation [2023] IECA 54 per Haughton J. at paragraphs 22 and 23.
13. In the Nua and Redwood cases, the parties agree that the question of law which arise in this appeal is one of statutory interpretation.
14. In brief, the Commissioner for Valuation ("the Commissioner") submits that the actual operation of the respective designated centres by Nua and Redwood do not come within the exemption in Schedule 4, reference number 14(b), and therefore the Tribunal made an error of law in determining that they did and in making a nil valuation.
15. Nua and Redwood submit, on the other hand, that the application of Schedule 4, reference number 14(b) was correct and that in consequence, the nil valuation was correct.
16. The central issue for consideration, therefore, might be described as a pure issue of law.
Cases Stated
Nua
17. As mentioned earlier, this property ("Millview") comprises a detached dormer bungalow on a site of approximately 0.22 hectares. The ground floor accommodation consists of a sunroom, kitchen, sitting room, utility room, bathroom, office and two bedrooms. The first-floor accommodation has three bedrooms and the property is freehold. The property is run as a designated care facility and operates as a supported residence for the provision of 24-hour care to four children with intellectual and/or physical disabilities ranging from the 12 to 18 years of age.
18. Consequent upon an appeal from the Revision Manager, the issue in the appeal before the tribunal was "whether the property is occupied for the purpose of caring for the elderly, handicapped or disabled persons by a body the expenses incurred by which in carrying on such care provision are defrayed wholly or mainly out of moneys provided by the Exchequer as referred to in paragraph 14 of Schedule 4".
19. Nua has an existing contract with the HSE comprising a Part 1 Service Arrangement (Standard Terms and Conditions) which includes the terms and conditions under which the HSE funds it for their care services. Ancillary to this is a Part 2 Service Arrangement which consists of various Service Schedules which are furnished by each HSE Community Healthcare Organisation and are completed and returned by Nua in respect of each resident being funded by the HSE.
20. The findings of fact made by the Tribunal as recorded in the case stated were as follows:
á The Tribunal found that the property was not a nursing home for the purposes of paragraph 14 of Schedule 4 of the 2001 Act and there was no defrayal of expenses under the Nursing Homes Support Scheme Act 2009.
á The Tribunal further made the following findings of fact: (i) it was not in dispute that the subject property was profit-making; (ii) the designated care centre operated under a HSE service agreement and a costing proposal agreement with TUSLA; (iii) it was not disputed that Nua was the sole shareholder of Maple and on 26th March 2021, the subject property was transferred from Maple to Nua; (iv) it was not disputed that 97.8% of all monies received by Nua came from the HSE and TUSLA and 100% of the income received in Millview was entirely from the HSE and TUSLA.
21. Further, under a sub-heading which asked "Were the expenses defrayed by the Appellant "wholly or mainly out of monies provided by the Exchequer"?", the Tribunal explained the broader context in which the issue of statutory interpretation in the Nua case arises, as follows:
"40É
41. The evidence from Mr Devereux, for the Appellant, was that the monies received by the Appellant from the HSE and TUSLA represented 97.8% of the revenue stream of the Appellant. Mr DevereuxÕs evidence was that the expenses that were defrayed by Nua were "wholly or mainly out of moneys provided by the Exchequer." He said there was a very clear link between the expenses incurred and the income coming in from the HSE and TUSLA. He said that if one service user left, the ESB bills and the rent would remain the same and would still be paid from HSE/ TUSLA monies. Mr Devereux said that there was a Service Level Agreement in place between Nua and the HSE and there was no direct agreement between Nua and each individual resident in relation to payment of fees. The Tribunal found that it was significant that individual residents are not party to any costing proposal agreements. It was also significant that Mr DevereuxÕs evidence was that, each month, Nua invoices the HSE for the total cost of providing residential care, community outreach and day services. Furthermore, invoices were not issued to and were not copied to individual residents or their families. The Tribunal noted that the AppellantÕs uncontradicted evidence was that it would be in breach of Regulation 24 of S.I. No. 367/2013 if any of the residentÕs own funds were used to defray the expense of their care in Millview. The Tribunal found that the evidence set out above from Mr Devereux made a compelling case for the Appellant.
42. Counsel for the Appellant submitted that each of the residents of the care facility were placed by the HSE or TUSLA. It was submitted that a costing proposal agreement was entered into by Nua and the relevant funder in respect of each prospective resident. It was submitted that there was no other source of funding for the expenses incurred by the Appellant. It was also submitted that as the Appellant is an organisation in receipt of Exchequer funding, it was obliged by the Department of Public Expenditure and Reform Circular 13/2014 to comply with core principles in the administration and management of funding from Exchequer sources, including clarity, governance, value for money and fairness.
43. Furthermore, it was submitted that the Appellant is a "service provider" for the purposes of section 2 of the Health Act 2007. It was noted that section 2 states that a "Ôservice providerÕ means a person who Ð enters into an arrangement under section 38 of the Health Act 2004 to provide a health or personal social service on behalf of the Executive." The Tribunal found that section 2 strongly suggested that the activity which was being carried on by the Appellant was being carried out as a service provider at a designated centre at the request of the ExecutiveÉ
É
47. The Tribunal also had sight of the Service Level Agreement, which referred to the Appellant as the "service provider.". It stated that "the Executive wishes to procure the provision of the services and the Provider wishes to provide such services."
Paragraph 2.1 referred to the fact that "The Executive hereby agrees to give funding to the Provider to provide the servicesÉ" The Service Level Agreement sets out how the funds paid by the HSE to the Appellant, inclusive of all duties, taxes, expenses and other costs associated with or incurred in the provision of the services, were to be paid. Paragraph 4.1 stated that "[s]ubject to the terms and conditions of this Arrangement and the Provider having at all times a current valid tax clearance certificate (a copy of which must be furnished to the Executive upon request), the funds to be paid by the Executive to the Provider inclusive of all duties, taxes, expenses and other costs associated with or incurred in the provision of the Services shall not exceed the amount specified in Schedule 6 (Funding)É."
48. The Appellant supplied numerous invoices to the Tribunal in respect of services provided. The invoices issued by the Appellant each month were in respect of the current service users of the property. The invoices set out the monthly costs for each resident and there were also invoices seeking money for inter alia "additional support" and "residential day services." These invoices arose from the contract between the HSE and the Appellant to provide inter alia food, accommodation and support to service users placed with them by the HSE, the profit of which was built into each monthly invoice, as envisaged in the terms of the contract.
49. When Mr Costello was questioned by Counsel for the Appellant, he accepted that the staff of the centre were paid by Nua from funds coming from the HSE. It was put to Mr Costello by Counsel for the Appellant that all the expenses of Nua were defrayed by the HSE and/or TUSLA and Mr Costello said that what muddied the waters for him was the lease and it looked like Nua and/or Maple were paying the rent and not the Exchequer. It was put to Mr Costello again by Counsel for the Appellant that all the income stream came from TUSLA or the HSE and he accepted that this was the case. It was also put to Mr Costello that all the running costs/expenses of the centre were paid for by Nua from this money including inter alia groceries, toilets, training, light, heat, power, travel and telephone and he agreed with this. Counsel for the Appellant suggested that Nua, therefore, paid for all the expenses of the designated centre out of the money which comes from the State and Mr Costello said that he could not argue with that. The Tribunal found the evidence of Mr. Costello in this respect to be highly significant and favourable to the AppellantÕs case, particularly in circumstances where he had more information, at hearing, than he had at the valuation date.
50. Considering the totality of the evidence before it and, in particular, the Service Level Agreement, costing proposals, the accounts provided and the documentary evidence put forward by the Appellant, along with the oral evidence of the parties, the Tribunal found, on the balance of probabilities, that the HSE and TUSLA provided monies to the Appellant as a service provider. Furthermore, the Tribunal found that there was no defrayal by the HSE of the expenses of the service users in the present case and that the Appellant was provided with monies from which it defrayed the expenses of carrying out the activity."
22. The case stated dated 2nd July 2024 recites that the Tribunal issued the following determination and referred, initially, the following five questions of law for consideration by the High Court:
"Determination of the Tribunal
(51) The Tribunal concluded, for the following reasons, that the claim for exemption under paragraph 14(b) of Schedule 4 succeeded.
(52) The Tribunal found that the relevant property falls within the ambit of paragraph 14(b) of schedule 4 above, and further, that the Appellant was a body the expenses incurred by which in carrying on an activity of caring for disabled persons were defrayed by the Exchequer, other than a body in relation to which such defrayal occurred by reason of the Nursing Home Support Scheme Act 2009.
(53) Accordingly, for the above reasons, the Tribunal allowed the appeal and decreased the evaluation of the property as stated in the evaluation certificate to Û0.
Questions of law for the opinion of the High Court
(54) Arising out of the forgoing, the following questions of law arise for the consideration of the High Court
(1) having regard to the evidence before it, did the tribunal err in law in determining that the relevant property fell within the ambit of the exemption provided for at paragraph 14(b), schedule 4 of the valuation act 2001 to 2015?
(2) Did the Tribunal err in law and/or in fact in determining that the HSE and TUSLA provided funds to the Appellant as a service provider rather than providing the funds to the service users cared for by the Appellant?
(3) Did the tribunal err in law and/or in fact in holding that there was no defrayal by the HSE of the expenses of the service users in the present case and that the Appellant was provided with monies from which it defrayed the expenses of carrying out its activities?
(4) Did the Tribunal err in law and/or in fact in determining that the expenses incurred by the Appellant in carrying out its activities were defrayed wholly or mainly out of moneys provided by the Exchequer?
(5) Did the Tribunal err in law in its interpretation and application of the decision of the High Court in Glendale Nursing Home v The Commissioner of Valuation [2012] IEHC 254 to the present case?
23. Counsel for the appellants and the respondent agreed that the second question Ð Did the Tribunal err in law and/or in fact in determining that the HSE and TUSLA provided funds to the Appellant as a service provider rather than providing the funds to the service users cared for by the Appellant Ð was no longer being pursued.
Redwood
24. To recap, the Redwood property is a designated care facility, i.e., a designated centre for people with intellectual disabilities. It is in a two-storey detached building located on the outskirts of Stamullen, County Meath. It has six bedrooms, five of which are occupied by people with intellectual difficulties, a communal kitchen and dining/living area, staff office and two bathrooms. The property was leasehold and is now freehold.
25. Again, in the case stated dated 24th June 2024, the Tribunal contextualises the background and circumstances which inform the question of statutory interpretation in the Redwood case.
26. Redwood is a subsidiary of the Talbot Group of companies and is established for profit. It was agreed between the parties that the funding Redwood received from the HSE/Exchequer did not arise under the Nursing Home Support Scheme Act 2009 and therefore there was no defrayal of expenses under that legislation. Through a Service Level Agreement, the HSE provided monies to Redwood as a service provider. One hundred percent of the monies received for the carrying out of RedwoodÕs activity are provided through funds from the HSE and the HSE was fully aware that Redwood was a for-profit organisation. The Tribunal found that the Service Level Agreement addressed how the funds paid by the HSE to Redwood inclusive of all duties, taxes, expenses and other costs associated or incurred in the provision of services were to be paid. The Tribunal found that the invoices issued by Redwood each month were in respect of the current service users of the property but arose from the contract between the HSE and Redwood to provide food, accommodation and support to service users placed with them by the HSE, the profit of which was built into each monthÕs invoice, as envisaged in the contract.
27. Redwood had initially appealed a determination of the Revision Manager made pursuant to section 28(4) of the 2001 Act which had deemed the property to be a relevant property and fixed a valuation of Û56 having found that a material change of circumstances had occurred pursuant to section 3 of the 2001 Act. The appeal to the Valuation Tribunal centred on the interpretation and application of Schedule 4, reference number (14)(b) of the 2001 Act.
28. As just mentioned, the Tribunal found at paragraph 10.10 of its decision that the parties agreed that the funding Redwood received from the HSE/Exchequer did not arise under the Nursing Home Scheme Act and therefore there was no defrayal of expenses under the Nursing Home Support Scheme Act and was an "entirely different model".
29. Again, as pointed out earlier, at paragraph 10.16, the Tribunal found that the residents of the property were placed by the HSE on foot of Service Level Agreements between the HSE and Redwood, whereby it agreed to provide accommodation, food and support services to the service user at an agreed rate. Invoices were then raised to reflect the care needs and fees incurred by Redwood in respect of each service user they care for. Having regard to the evidence adduced (including the evidence of Mr. O'Halloran and the Service Level Agreement), the HSE provided money to Redwood qua service provider.
30. At paragraph 10.25 of its decision in Redwood, the Tribunal found, on the evidence adduced before it, that there was no defrayal by the HSE of the expenses of the service users and that Redwood was provided with moneys from the HSE from which they defrayed the expenses of carrying out the activity.
31. At paragraph 10.28 of its finding, the Tribunal found that the facts of the Glendale case (referred to later in this judgment) were sufficiently distinguishable from those which applied to Redwood. The Nursing Home Support Scheme/Fair Deal Scheme, as it applied to nursing homes, was a sufficiently distinctive factor and it was accepted that Redwood was not a nursing home.
32. At paragraph 10.35, the Tribunal found that the service user had limited autonomy over where they were placed, which was completely different to the choice afforded a person under the Fair Deal Scheme and at paragraph 10.36, the Tribunal found that based on all of the evidence adduced before it, the position in Redwood was distinguishable from that which applied in Glendale and the application of the Fair Deal Scheme.
33. Insofar as this appeal is concerned, the case stated recites that the Tribunal issued the following determination and referred, initially, the following three questions of law for consideration by the High Court:
"DETERMINATION
The Tribunal concluded, for the following reasons, that the claim for exemption under paragraph 14(b) of Schedule 4 succeeded. The Tribunal found that the relevant property fell within the ambit of paragraph 14(b) and, further, that the Appellant was a body the expenses incurred by which in carrying on an activity of caring for disabled persons are defrayed by the Exchequer, other than a body in relation to which such defrayal occurs by reason of the Nursing Homes Support Scheme Act 2009.
Accordingly, for the above reasons, the Tribunal allowed the appeal and decreased the valuation of the property as stated in the valuation certificate to Û0.
THE QUESTIONS OF LAW ARISING
Arising out of the foregoing, the following questions of law arise for the consideration of the High Court:
(1) Having regard to the evidence before it, did the Tribunal err in law in determining that the relevant property fell within the ambit of paragraph 14(b), Schedule 4 of the Valuation Act, 2001 as amended?
(2) Did the Tribunal err in law in its interpretation of the term "defrayal of expenses"? Specifically, did the Tribunal err in law in determining that where the payments are calculated on the costs of the service users, and only paid relating to any person who might be present from time to time, that nonetheless amounts to a defrayal of the AppellantÕs expenses, as opposed to income, contrary to the decision in Glendale [6] ?
(3) Did the Tribunal err in law in determining that a body carrying on an activity for profit was entitled to avail of the exemption applied?Õ
34. At the hearing before me, counsel for all parties agreed that the third question Ð Did the Tribunal err in law in determining that a body carrying on an activity for profit was entitled to avail of the exemption applied Ð was no longer being pursued.
THE VALUATION ACT 2001 [7]
Overview
35. In the event that a rate payer is dissatisfied with a valuation by the Commissioner of Valuation, or an official under section 19 of the 2001 Act, that decision can be appealed pursuant to section 34 of the 2001 Act and the Valuation Tribunal makes its determination under section 37 of the 2001 Act. The determination of the Valuation Tribunal can then be subject to an appeal to the High Court by way of case stated on a point of law under section 39 (and particularly section 39(5)) of the 2001 Act.
36. Section 15 of the 2001 Act provides for the rateability of relevant property as follows:
"(15)(1) Subject to the following subsections and sections 16 and 59, relevant property shall be rateable.
(2) Subject to sections 16 and 59, relevant property referred to in Schedule 4 shall not be rateable.
(3)É.
(4) A fishery on which a rate is struck under section 55 of the Fisheries (Consolidation) Act, 1959, shall not be rateable."
37. Section 16 of the 2001 Act provides for the times from which a relevant property shall or shall not be rateable. Section 59 of the 2001 Act provides for the treatment of certain mines, rights to drill and apartments for rates purposes. Nothing turns on those sections insofar as the matter before me is concerned.
38. Schedule 4 of the 2001 Act is the central provision under consideration in these appeals and prescribes what is Ôrelevant property not rateableÕ.
39. Whilst these appeals are concerned with Schedule 4, reference number 14(b), it is apposite to set out the entire of Schedule 4, as follows:
"1. Agricultural land.
2.Land developed for horticulture.
3.Land developed for forestry.
4.Land developed for sport.
4A.(1) Any building or part of a building used exclusively for community sport, and otherwise than for profit and not being the premises of a club for the time being registered under the Registration of Clubs (Ireland) Act 1904.
(2) In this paragraph "community sport" means sport, the principal participants in which areÑ
(a) inhabitants of the locality in which the building concerned (or part of the building concerned) is situate,
(b) inhabitants of localities neighbouring the first-mentioned locality, or
(c) in the case of sporting activities involving teams and with the consent of those responsible in the first-mentioned locality for organising sporting activities in that locality, persons from any geographical area.
4B.(1) Any building or part of a building used exclusively for community sport and otherwise than for profit, and being the premises of a club for the time being registered under the Registration of Clubs (Ireland) Act 1904, but not including any building or part of a buildingÑ
(a) used on a regular or occasional basis for the sale or consumption of alcohol or in conjunction with the sale or consumption of alcohol, or
(b) used directly or indirectly in the generation of income, not beingÑ
(i) club membership fees,
(ii) income received from community organisations for the use of the building or part for community purposes, or
(iii) income received from participants in community sport for the use of the building or part for the purposes of community sport.
(2) In this paragraph "community sport" has the same meaning as it has in paragraph 4A of this Schedule but with the modification that, in the case of subparagraph (1)(b)(iii) of this paragraph, the definition of that expression in that paragraph 4A shall be read as if for "the principal participants in which areÑ" there were substituted "the principal participants in which are, ordinarilyÑ"[.]
5.Farm buildings.
6.Any domestic premises (but subject to section 59(4) (which provides that apartments are rateable in certain limited circumstances)).
7.Any land, building or part of a building used exclusively for the purposes of public religious worship.
8.Any land, building or part of a building used by a body for the purposes of caring for sick persons, for the treatment of illnesses or as a maternity hospital, being eitherÑ
(a) a body which is not established and the affairs of which are not conducted for the purpose of making a private profit from an activity as aforesaid, or
(b) a body the expenses incurred by which in carrying on an activity as aforesaid are defrayed wholly or mainly out of moneys provided by the Exchequer and the care or treatment provided by which is made available to the general public (whether with or without a charge being made therefor).
9.Any burial ground or crematorium which is not established or operated for the purposes of making a private profit and the income derived from the operation of which is used wholly to defray the expenses (including expenses of a capital nature) incurred in its operation.
10.Any land, building or part of a building occupied by a school, college, university, institute of technology or any other educational institution and used exclusively by it for the provision of the educational services referred to subsequently in this paragraph and otherwise than for private profit, being a school, college, university, institute of technology or other educational institution as respects which the following conditions are complied withÑ
(a) (i) it is not established and the affairs of it are not conducted for the purposes of making a private profit, or
(ii) the expenses incurred by it in providing the educational services concerned are defrayed wholly or mainly out of moneys provided by the Exchequer,
and
(b) in either case it makes the educational services concerned available to the general public (whether with or without a charge being made therefor).
11.Any art gallery, museum, library, park or monument which is normally open to the general public, and which is not established or maintained for the purpose of making a private profit.
12.Property (whether falling within paragraph 11 or not) occupied byÑ
(a) the National Museum of Ireland,
(b) the National Library of Ireland,
(c) the National Gallery of Ireland,
(d) the Irish Museum of Modern Art Company,
(e) the Arts Council,
(f) the Heritage Council,
(g) the National Concert Hall F124[É],
(h) the Chester Beatty Library, or
(i) the National Theatre Society Limited.
12A. Property, being a building or part of a building, land or a waterway or a harbour directly occupied byÑ
(a) any Department or Office of State,
(b) the Defence Forces, or
(c) the Garda S'och‡na,
or used as a prison or place of detention, wherever situate, but in this paragraph "harbour" does not include a harbour in respect of which a company has been established pursuant to section 7 of the Harbours Act 1996.
13.Any buoy, beacon or lighthouse.
14.Any land, building or part of a building occupied for the purpose of caring for elderly, handicapped or disabled persons by a body, being eitherÑ
(a) a body which is not established and the affairs of which are not conducted for the purpose of making a private profit from an activity as aforesaid, or
(b) a body the expenses incurred by which in carrying on an activity as aforesaid are defrayed wholly or mainly out of moneys provided by the Exchequer, other than a body in relation to which such defrayal occurs by reason of the Nursing Homes Support Scheme Act 2009.
15.Any building or part of a building used exclusively as a community hall.
16.Any land, building or part of a building which is occupied by a body, being eitherÑ
(a) a charitable organisation that uses the land, building or part exclusively for charitable purposes and otherwise than for private profit, or
(b) a body which is not established and the affairs of which are not conducted for the purpose of making a private profit andÑ
(i) the principal activity of which is the conservation of the natural and built endowments in the State, and
(ii) the land, building or part is used exclusively by it for the purpose of that activity and otherwise than for private profit.
17.Any land, building or part of a building occupied by a society established for the advancement of science, literature or the fine arts and which is used exclusively for that purpose and otherwise than for private profit.
18.Any turf bog or turf bank used exclusively for the purpose of cutting turf or for making turf mould therefrom for fuel or manure.
19. (1) Any building or part of a building occupied by a member of either House of the Oireachtas or a representative in the European Parliament which is used exclusively for the purposes of accommodating his or her constituency office and the whole or part of the expenses incurred in maintaining that accommodation are defrayed by that member or representative.
(2) In this paragraph "constituency office" means an office which is used solely for the provision of representative services by the member of the House of the Oireachtas or representative in the European Parliament concerned in his or her capacity as such a member or representative but does not include the head office of a political party or any other office occupied by a political party.
20.Any land, building or part of a building occupied by the Health Service Executive other than any land, building or part of a building referred to in paragraph 8 or 14.]
21É
22.Any land, building or part of a building used exclusively for the provision of early childhood care and education, and occupied by a body which is not established and the affairs of which are not conducted for the purpose of making a private profit."
40. Section 39 of the 2001 Act provides for appeals to the High Court as follows:
"(1) After the determination of an appeal under section 37 by the Tribunal, any party to the appeal, if dissatisfied with the determination as being erroneous in point of law, may declare in writing to the Tribunal his or her dissatisfaction and such a declaration shall be made within 21 days from the date of the Tribunal's having made its determination.
(2) The party, having declared his or her dissatisfaction, may, within 28 days from the date of the said determination, by notice in writing addressed to the chairperson of the Tribunal, require the Tribunal to state and sign a case for the opinion of the High Court thereon within 3 months from the date of receipt of such notice.
(3) The case shall set forth the facts and the determination of the Tribunal and the party requiring it shall transmit the case, when stated and signed by the chairperson of the Tribunal, to the High Court within 7 days from the date of receiving it.
(4) At or before the time when he or she transmits the case to the High Court, the party requiring it shall serve notice in writing of the fact that the case has been stated on his or her application, together with a copy of the case, on each other party to the appeal referred to in subsection (1).
(5) The High Court shall hear and determine any question or questions of law arising on the case, and shall reverse, affirm or amend the determination in respect of which the case has been stated, or shall remit the matter to the Tribunal with the opinion of the Court thereon, or may make such other order in relation to the matter as the Court thinks fit.
(6) The High Court may cause the case to be sent back for amendment, and thereupon the case shall be amended accordingly, and judgement shall be delivered after it has been amended.
(7) An appeal shall lie to the Supreme Court from the decision of the High Court under this section."
"(92) In recent years, this Court has addressed the issue of statutory interpretation in a number of important judgments (see especially People (DPP) v AC [2021] IESC 74, [2022] 2 I.R. 49 and Heather Hill Management Company v An Bord Plean‡la [2022] IESC 43, [2022] 2 ILRM 313). In the case of A, B and C v The Minister for Foreign Affairs and Trade [2023] IESC 10, 1 I.L.R.M. 335, Murray J. said that the cases on statutory interpretation including Heather Hill Management Company CLG and Anor v An Bord Plean‡la:
"have put beyond doubt that language, context and purpose are potentially in play in every exercise in statutory interpretation, none ever operating to the complete exclusion of the other. The starting point in the construction of a statute is the language used in the provision under consideration, but the words used in that section must still be construed having regard to the relationship of the provision in question to the statute as a whole, the location of the statute in the legal context in which it was enacted, and the connection between those words, the whole Act, that context, and the discernible objective of the statute. The court must thus ascertain the meaning of the section by reference to its language, place, function and context, the plain and ordinary meaning of the language being the predominant factor in identifying the effect of the provision but the others always being potentially relevant to elucidating, expanding, contracting or contextualising the apparent meaning of those words"."
46. Similarly, at paragraph 5 of his judgment in The People (DPP) v Crawford [2024] IESC 44, Hogan J. observed as follows:
"as Murray J. indicated in Heather Hill v An Bord Plean‡la [2022] IESC 43, [2022] 2 ILRM 313, the exercise of statutory interpretation requires the court to have regard to the relevant context. This means that regard must be had to the entirety of the legislation and the relevant words or even a section of an Act cannot be viewed in isolation. As Black J. famously said in The People (Attorney General) v. Kennedy [1946] IR 517 at 536:
"A small section of a picture, if looked at close-up, may indicate something clearly: but when one stands back and views the whole canvass, the close-up view of the small section is often found to have been given a wholly wrong view of what it really represented.""
DISCUSSION & DECISION
47. At the beginning of this judgment, I briefly sketched the historical journey of the centuries old statutory provisions in relation to rates, the latest iteration of which is the 2001 Act.
48. In general, rates legislation provides for inter alia the application of rates, exemptions from rates, waivers and abatements and the continuation of the offices of the various statutory bodies concerned with rates.
49. The structure of the entire 2001 Act has thirteen Parts and five schedules.
50. Part 1 deals with Preliminary matters including: sections 1 to 8 set out the Short title (s. 1), the Commencement provisions (s. 2), the Interpretation (s. 3), Fees (s. 4), Forms (s. 5), Expenses (s. 6), Orders and regulations (s. 7) and repeals (s. 8).
51. Part 2 of the 2001 Act provides for the continuation of the Commissioner for Valuation ("the Commissioner") (s. 9), the delegation to the Commissioner of certain functions and providing for when the Commissioner is temporarily unable to act (s. 10), and the delegation of functions by the Commissioner (s. 11).
52. Part 3 (s. 12) of the 2001 Act provides for the continuation of the Valuation Tribunal notwithstanding the repeal of the Valuation Act 1988.
53. Part 4 of the 2001 Act, which, as mentioned earlier, is the provision generally at issue in these proceedings (together with Schedule 4) provides for the "Property to be Valued" and addresses the following matters: valuation of property (s. 13), construction of references to property being rateable and relationship between expressions "relevant property", "hereditament" and "tenement", etc., (s. 14), rateability of relevant property (s. 15), times from which relevant property shall or shall not be rateable (s. 16) and the unit of valuation.
54. Part 5 of the 2001 Act refers to "Valuations" and includes the following matters: references to valuations (s. 18), valuation orders (s. 19), the date by reference to which valuation shall be made (s. 20), the publication date for valuation lists (s. 21), publicity for valuation (s. 22), publication of the valuation list consequent on valuation (s. 23), the issue of valuation certificates consequent on valuation having been carried out (s. 24), the frequency with which powers under Part 5 are to be exercised (s. 25) and the right of an occupier to make representations in relation to proposed valuation (s. 26).
55. Part 5A of the 2001 Act provides for "Occupier Assisted Valuation" and makes provision for the following matters: definition (Part 5A) (s. 26A), regulations which may provide for occupier assisted valuation (s. 26B), the Act to apply (s. 26C), the functions of officer of Commissioner under occupier assisted valuation (s. 26D), the right of occupier to make representations under occupier assisted valuation (s. 26E), the provision for an offence where an occupier fails to submit a valuation (s. 26F), and the circumstances where a person submits false valuation (s. 26G).
56. Part 6 of the 2001 Act deals with the revision of valuations and provides for the following matters: applications for revision of valuation lists (s. 27); revision of valuation lists (s. 28), the right of an occupier to make representations in relation to a proposed revision (s. 29) and where a revision manager decides not to revise a valuation (s. 29A).
57. As set out earlier, several of the provisions of Part 7, sections 30 to 40, of the 2001 Act, providing for "Appeals" and the various tiers of appeal, to and from the Valuation Tribunal, including those provisions which stand repealed, are set out.
58. Part 8 of the 2001 Act provides for the repeal of the provisions providing for an annual report (s. 41) and for the duties on public bodies Ð identified as (a) a Department of State or any other office or agency of the State, (b) a rating authority, or (c) any other body established by or under any statute Ðto provide certain information to the Commissioner (s. 42).
59. Part 9 of the 2001 Act provides for Existing Valuation Lists, including that existing valuation lists are to continue in force and for severability of properties appearing on it (s. 43) and for the application of Parts 6 and 7 (with exceptions) and certain other provisions to existing valuation lists (s. 44).
60. Part 10 of the 2001 Act provides for ancillary powers of officers, including the power to require information to be supplied (s. 45), the obligation of the occupier of property to supply certain information (s. 46) and the power to enter (s. 47).
61. Part 11, sections 48 to 55 of the 2001 Act provide for the different methods of valuation.
62. Part 12 of the 2001 Act provides for the rates incomes of local authorities with section 56 setting out detailed provisions in relation to the power to limit rates income.
63. Part 12A of the 2001 Act deals with State Land (s. 56A) including legal proceedings (s. 56B), the power of the Minister (s. 56C), the instruments to have effect (s. 56D) and the validity of transfer (s. 56E).
64. Part 13, sections 57 to 71 of the 2001 Act provides for a number of miscellaneous matters including: transitional provisions in relation to matters not completed under Act of 1988 or Act of 1852 (s. 57), transitional provision to take account of global valuations made before carrying out of valuation under section 19 (s. 58), the treatment of certain mines, rights to drill and apartments for rates purposes (s. 59), evidence of valuation list (s. 60), relevant property constructed over boundary of rating authority area (s. 61), the power to revoke certain appointments and appoint substitutes (s. 62), the correctness of the valuation list, prosecutions (s. 64), penalties (s. 65), the issue of certificates, service of notices, etc., (s. 66), the valuation for certain purposes of property falling within Schedule 4 (s. 67), the valuation for certain purposes of property not falling within Schedule 4 (s. 67A), the rateable valuation of property for purposes of condition 5 of section 10 of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978 (s. 67B), the repeal of the provisions dealing with the Prohibition against unauthorised disclosure of confidential information (s. 68) and the power of the Commissioner may charge fees for copies of valuation lists, etc., supplied (s. 69), provisions facilitating the appointment of an agent by an occupier (s. 70) and provisions in relation to data sharing (s. 71).
65. As referred to earlier, Schedule 1 of the 2001 provides for the enactments which are repealed, Schedule 2 provides for the Valuation Tribunal, Schedule 3 treats of Ôrelevant propertyÕ, Schedule 4 (which is the provision at issue in these appeals) sets out what is deemed to be Ôrelevant property not rateableÕ, and Schedule 5 sets out the ÔplantÕ referred to in section 51 of the 2001 Act.
67. In Nangles Nurseries v Commissioners of Valuation [2008] IEHC 73, the High Court (MacMenamin J.) set out, at paragraphs (12) to (14), the general purpose of the 2001 Act as follows:
"(12) The preamble to the Valuation Act, 2001 states that it is, inter alia, an Act to revise the law relating to the valuation of properties, for the purposes of the making of rates in relation to them and to make new provision in relation to the categories of properties in respect of which rates may not be made and to provide for related matters. An objective of the Act, therefore, is as the preamble says, to re-cast or review the categories of properties not liable for rates, that is those which are to be exempt from liability. These categories are not further identified in the preamble. [ [12]]
(13) By virtue of s. 15, it is provided (subject to a number of immaterial conditions) that Ôrelevant propertyÕ is to be rateable. At s.15(2) it is provided that by way of exemption: "Subject to sections 16 and 59 relevant property referred to in Schedule 4 shall not be rateable." [ [13]]
(14) It is now necessary to consider the relevant definitions which arise in this case stated in their statutory context."
69. Section 3 of the 2001 Act defines that "relevant property" shall be construed in accordance with Schedule 3 of the 2001 Act. Section 15(1) of the 2001 Act provides that "Subject to the following subsections and sections 16 and 59, relevant property shall be rateable." Section 15(2) 2001 provides the basis for the scheduled exemptions and gives effect to that aspect of the general purpose of the 2001 Act contained in its Long Title which refers to "to make new provision in relation to the categories of properties and respect of which rates may not be made and to provide for related matters" and carves out exceptions to section 15(1) of the 2001 Act by providing that "subject to sections 16 and 59, relevant property referred to in Schedule 4 shall not be rateable." As mentioned earlier, insofar as these appeals are concerned, nothing turns on sections 16 (which provides for the times from which relevant property shall or shall not be rateable) and 59 of the 2001 Act (which provides for the treatment of certain mines, rights to drill and apartments for rates purposes).
70. Contextually, the provisions of Schedule 4 of the 2001 Act (which I have set out in full earlier in this judgment) enumerates a variety of categories of property which are exempt from rates including inter alia domestic premises, agricultural land, farm buildings, land developed for sport, burial grounds, parliamentary constituency offices, religious worship, charitable uses and caring for the sick and elderly.
71. Historically, prior to the 2001 Act, previous legislative provisions provided for exemptions for bodies who cared for the sick and the elderly: in BarringtonÕs Hospital v Commissioner of Valuation [1957] I.R. 299, Kingsmill Moore J. observed (at pp. 315 to 316) that it seemed "strange that so important a question as the liability of a hospital to pay rates should have to wait a century for an authoritative decision by a superior court, but so it is". In BarringtonÕs Hospital, on the facts of that case, the Supreme Court decided the presence in a hospital of a limited number of paying patients did not prevent the hospital being charitable in its purpose. Of more recent vintage, the High Court in Nangles Nurseries v Commissioners of Valuation [2008] IEHC 7 stated that the context of the 2001 Act repealed the previous legislation which provided for various exemptions from rates and reviewed and re-casted in Schedule 4 the categories of properties which would henceforth be deemed exempted from the liability to pay rates. The onus remains on the person claiming an exemption to demonstrate that they come within the terms of that particular exemption.
72. Again, the central issue in these appeals concerns the interpretation of the ÔexemptionÕ from rates in reference number (14) (b) of Schedule 4 of the 2001 Act and its application to the properties in the Nua and Redwood cases:
"(14) Any land, building or part of a building occupied for the purpose of caring for elderly, handicapped or disabled persons by a body, being eitherÑ
(a) a body which is not established and the affairs of which are not conducted for the purpose of making a private profit from an activity as aforesaid, or
(b) a body the expenses incurred by which in carrying on an activity as aforesaid are defrayed wholly or mainly out of moneys provided by the Exchequer other than a body in relation to which such defrayal occurs by reason of the Nursing Homes Support Scheme Act 2009. "
73. The addition of " other than a body in relation to which such defrayal occurs by reason of the Nursing Homes Support Scheme Act 2009" was effected on 8th June 2015 pursuant to the Valuation (Amendment) Act 2015 (subject to the transitional provisions in the 2015 Act). This amendment post-dated the decision of the High Court in Glendale and, for example, includes the word "defrayal", which was an issue raised in Glendale and which was addressed by Birmingham J. at paragraphs 23 and 24 of his judgment, inter alia observing that it was important "not to focus just on the word "defrayed" but on the context in which it appears". As pointed out later in this judgment, the important "context" in Glendale concerned the application and operation of the Nursing Homes Support Scheme Act 2009 and its emphasis on the individual in need of care rather than on the care provider,
"There is a presumption that every word in an enactment is to be given meaning.
Comment
Given the presumption that the legislature does nothing in vain, the court must endeavour to give significance to very word of an enactment. It is presumed that if a word or phrase appears, it was put there for a purpose and must not be disregarded. This applies a fortiori to a longer passage, such as a subsection or section ".
(i) in the payment of ministerial expenses and CommissionerÕs expenses incurred "in the administration of the 2001 Act" out of moneys provided by the Oireachtas;
(ii) in the defrayment of expenses incurred by a body for the purposes of caring for sick persons, for the treatment of illnesses or as a maternity hospital wholly or mainly out of moneys provided by the Exchequer and the care or treatment provided by which is made available to the general public (whether with or without a charge being made) ;
(iii) in the defrayment of expenses incurred by a school, college, university, institute of technology or any other educational institution and used exclusively for the provision of educational services (otherwise than for profit) wholly or mainly out of moneys provided by the Exchequer;
(iv) in the example of the two statutory appeals before me, the defrayment of the expenses incurred by Nua and Redwood for the purpose of caring for elderly, handicapped or disabled persons wholly or mainly out of moneys provided by the Exchequer (other than a body in relation to which such defrayal occurs by reason of the Nursing Homes Support Scheme Act 2009).
(i) Schedule 4, reference numbers (8)(a) and (b) of the 2001 Act which provide that "Any land, building or part of a building used by a body for the purposes of caring for sick persons, for the treatment of illnesses or as a maternity hospital, being either (a) a body which is not established and the affairs of which are not conducted for the purpose of making a private profit from an activity as aforesaid, or (b) a body the expenses incurred by which in carrying on an activity as aforesaid are defrayed wholly or mainly out of moneys provided by the Exchequer and the care or treatment provided by which is made available to the general public (whether with or without a charge being made therefor)" and,
(ii) Schedule 4, reference numbers (10) (a) and (b) of the 2001 provides that "Any land, building or part of a building occupied by a school, college, university, institute of technology or any other educational institution and used exclusively by it for the provision of the educational services referred to subsequently in this paragraph and otherwise than for private profit, being a school, college, university, institute of technology or other educational institution as respects which the following conditions are complied with (a) (i) it is not established and the affairs of it are not conducted for the purposes of making a private profit, or (ii) the expenses incurred by it in providing the educational services concerned are defrayed wholly or mainly out of moneys provided by the Exchequer, and (b) in either case it makes the educational services concerned available to the general public (whether with or without a charge being made therefor)."
"the expenses incurred by which in carrying on an activity as aforesaid are defrayed wholly or mainly by the Exchequer."
"The Tribunal finds that the fact that a profit is included in what the HSE pays the Appellant [Redwood] is determinative of the applicability of [paragraph] 14(b). Further, the evidence from the Appellant [Redwood] was that a profit was disclosed to the HSE at the tendering stage to there can have been no doubt as to whether the Appellant [Redwood] fell under [paragraph] 14(a) or (b) in the circumstances."
89. As set out earlier in this judgment, in each case, the Tribunal did not find that there was a defrayal by the HSE (or TUSLA) of the expenses of Redwood and Nua. Rather, it found that they both received payments from the HSE (or TUSLA) in return for services across a number of centres and that from its income, Nua and Redwood defrayed the expenses of carrying out its activity.
90. As mentioned, a large part of the hearing of these appeals was spent by the respective parties submitting that the decision of the High Court (Birmingham J., as he then was) in Glendale Nursing Home v The Commissioner of Valuation [2012] IEHC 254 (15th June 2012) ("Glendale") supported their respective arguments.
91. Indeed, from the various decisions of the differently empanelled ÔbancsÕ of the Valuation Tribunal which were referenced by the parties, the Glendale judgment is frequently cited in arguments before the Tribunal by opposing parties.
92. Whilst closely argued submissions were made before me in relation to Glendale in these appeals, neither party submitted that it was incorrectly decided and the judgment was never the subject of an appeal. The question arises, therefore, whether the judgment is applicable to the facts of these appeals or whether it can be distinguished. For reasons set out in the remaining part of this judgment, I consider that that the ratio of Glendale and the facts of that case are distinguishable from that which applies in the Nua and Redwood cases.
93. To recap, in Glendale the Valuation Tribunal stated a case to the High Court on the following questions:
"Whether: -
(1) The HSE in making payments to nursing homes under the Nursing Homes Support Scheme Act 2009, is, within the ordinary meaning of the word, defraying expenses of the nursing home in its purpose of caring for the elderly;
(2) The HSE for all intents and purposes is Ôthe StateÕ as defined for the purposes of the Valuation Act 2001, as was held by MacMenamin J. in HSE v Commissioner for Valuation [2008] IEHC 178 and by natural extension is therefore acting on behalf of the Exchequer when it makes payment;
(3) The relevant property falls within the ambit of paragraph 14(b) of the fourth schedule to the Valuation Act 2001;
(4) Glendale Nursing Home is a body the expenses incurred by which in carrying on an activity as a nursing home caring for the elderly are defrayed by the Exchequer;
(5) In the event that the answers to the above questions are yes, did the Tribunal err in law in holding that expenses incurred by Glendale were not wholly or mainly defrayed out of monies provided by the Exchequer when the uncontested evidence before the Tribunal was that between the 10th January 2010, and the 10th June 2010, the proportion of Glendale's income that came from the HSE ranged from 60.51% to 51.92%?"
94. Glendale was a nursing home in Carlow. It had argued before the Valuation Tribunal that it should be exempt from rateability. It was agreed that its claim to be entitled to an exemption from rateability fell to be determined by reference to (reference number) paragraph 14(b) of Schedule 4 of the 2001 Act. At the time, the unamended version of Schedule 4, reference numbers 14(a) and (b) of the 2001 Act stated as follows:
"Any land, building or part of a building occupied for the purpose of caring for elderly, handicapped or disabled persons by a body, being either (a) a body which is not established and the affairs of which are not conducted for the purpose of making a private profit from an activity as aforesaid, or (b) a body the expenses incurred by which in carrying on an activity as aforesaid are defrayed wholly or mainly out of moneys provided by the Exchequer."
95. At paragraph 4 of the judgment, the issue before the court was described as follows: "In effect the real question at issue, which will decide whether the nursing home is rateable or is exempt from rates, is whether it is the case that its expenses are defrayed wholly or mainly out of monies provided by the Exchequer." It was accepted for this purposes that the HSE and the Exchequer were synonymous and the second question in the case stated therefore fell away.
96. At the hearing before the Valuation Tribunal, Glendale had submitted that it met the criteria under paragraph 14(b) of Schedule 4 to the 2001 Act (and was therefore entitled to an exemption from rateability) because more than fifty percent of its income was derived from the Nursing Home Subvention Scheme and the Nursing Home Support Scheme paid by the HSE in compliance with the Health (Nursing Homes) (Amendment) Act 2007 and the Nursing Homes Support Scheme Act 2009.
97. The CommissionerÕs response in Glendale was described in paragraph 6 of the judgment as being that the exemption in paragraph 14(b) applied if the body in question could establish that expenses incurred were wholly or mainly defrayed by the Exchequer but that in this case State support or subvention was: (a) a payment applied for by an individual; (b) the payment was for the purposes of assisting that individual procure services of their choice from the market place; (c) the HSE was not involved in defraying expenses incurred by Glendale (or by any other private nursing home); (d) the HSE did not have the statutory objective or purpose of defraying the expenses of Glendale Nursing Home.
98. This issue was addressed by the Valuation Tribunal as a preliminary legal issue. The Tribunal referred to the dictionary definition of the word ÔdefrayÕ [20] and held that the HSE, in making payments to nursing homes under the Nursing Homes Support Scheme Act 2009, was, within the ordinary meaning of the word, ÔdefrayingÕ expenses of the nursing home in its purpose of caring for the elderly and that Glendale came within the ambit of Schedule 4, reference number 14(b) of the 2001 Act. It decided that "Glendale Nursing Home" was a body "the expenses incurred by which in carrying on an activity as a nursing home in caring for the elderly are defrayed by the Exchequer." However, the Tribunal decided that as it was not provided with sufficient evidence to establish whether the expenses were defrayed wholly or mainly out of monies provided by the Exchequer, Glendale did not qualify for relief under Schedule 4, reference number 14(b) of the 2001 Act.
99. Birmingham J. (as he then was) described the role of the HSE in interacting with the private nursing home sector from paragraphs (13) to (19) of his judgment in Glendale, making reference, in particular, to the Subvention Scheme and its replacement in October 2009 by the Nursing Homes Support Scheme pursuant to the provisions of the Nursing Homes Support Scheme Act 2009 ("the Fair Deal Act").
100. Importantly, under the Nursing Homes Support Scheme, the individual in need of care made a contribution towards the cost of their care and the State paid the balance whether the nursing home was public, private or voluntary.
101. To seek entry into the scheme, for example, two (and in some cases three) of the following steps had to be met: (i) an application was required to be made for a care needs assessment which identified whether or not the individual was in need of long-term nursing home care; (ii) an application had to be made for State support by the individual, i.e., this involved a detailed financial assessment to determine the contribution to be made by the individual to their own care and then the corresponding level of financial assistance from the State by way of State support (following which the HSE would provide the individual with a list of possible nursing homes: ÔpublicÕ where the ÔcontributionÕ was paid to the HSE, ÔvoluntaryÕ where the contribution was paid to the voluntary home each week and the HSE paid the balance, ÔapprovedÕ where the price to be charged for care was agreed with the National Treatment Purchase Fund and approved for the purpose of the scheme). If a private nursing home was selected, the individual entering into care paid a contribution to the nursing home provider each week and the HSE paid the balance; (iii) if applicable, an optional third step involved an application for a Nursing Home Loan under the ÔAncillary State SupportÕ provisions of the Fair Deal Act (where an individual would contribute eighty per cent of their assessable income and five per cent of the value of any assets per annum. Therefore, in the case of certain individuals the HSE/the State could expect to recoup some of the monies it has expended on their behalf).
102. The High CourtÕs assessment of these matters commenced at paragraph (19) of the judgment.
103. Birmingham J. observed that the focus of the provision of both State support and subvention was on the individual in need of care rather than on the care provider and instanced the fact that under both schemes, an individual could choose a nursing home in Northern Ireland, if it was registered with Health and Social Services Board:
"It seems to me that it is beyond argument that under both schemes what the State, through the HSE, has sought to do is to offer support and assistance to those requiring care rather than setting out with the objective of assisting private or voluntary care providers. That is not necessarily the end of the matter but it is a matter of some significance". [21]
104. At paragraph (20) of the judgment, the court, in addressing the basis on which the claim for exemption was advanced, stated that there were two aspects of Schedule 4, paragraph 14(b) which required consideration: first, the question of whether the expenses incurred by Glendale in carrying out the task of caring for its elderly residents were defrayed by the Exchequer; second, if it was concluded that the expenses are in fact defrayed by the Exchequer/HSE, whether the extent to which that happened was such that it can properly be said that the expenses are "wholly or mainly" defrayed.
105. The court focused not on the word ÔdefrayalÕ but rather the contextual basis for examining the issue was to whether the expenses of Glendale incurred by it in caring for the elderly were defrayed by the HSE.
106. An important part of that context, from an interpretive perspective, was the application of the Nursing Homes Support Scheme Act 2009, the Long Title of which stated that it was "An Act to provide for the establishment of a scheme to be known as the Nursing Home Support Scheme under which financial support may be made available to persons in respect of long term residential care services out of resources allocated to the Health Service Executive for the purposes of the scheme". (Underlining added).
107. In its submission before the Tribunal in Glendale, the Commissioner stated that what was involved was the making up of a shortfall in the price charged by the nursing home to the consumer, i.e., the State support defrayed the costs of the care of the elderly person in need of care and the scheme was designed to assist in covering the cost of care to the individual who is in need of care.
108. In that context, Birmingham J. observed that the words in Schedule 4, paragraph 14(b) of the 2001 Act were in the passive tense, i.e., whether the expenses of Glendale were being defrayed by the HSE, and observed that to seek to characterise the issue as to whether the State/HSE ÔintendedÕ to support Glendale by defraying its expenses or still less whether that was its primary motivation "would be a wholly strained, contrived and artificial use of language."
109. The Court held that what the HSE was Ôactually doingÕ was contributing to the cost of care for the individual elderly person and alleviating the burden on that elderly person in obtaining care:
"It might be said that the State/HSE defrays the expenses of the individual elderly person in need of care but it cannot be said that they are defraying the costs of Glendale".
110. It was, therefore, in the context of the courtÕs focus on the context and operation of the Nursing Homes Support Scheme Act 2009 and its emphasis on the individual in need of care rather than on the care provider, that Birmingham J. (as he then was) stated at paragraph 28 of his judgment in Glendale that:
"(28) I am not at all convinced that it could ever be said that the State, by agreeing to offer financial support or subvention to individual elderly people in need of care, could be said to be defraying the expenses of Glendale. I have already pointed out that individuals are entitled to opt for a nursing home in Northern Ireland. On that basis can it be said that the expenses of Northern Ireland nursing homes are being defrayed by the HSE ?" [22].
111. The focus of the Glendale case therefore was about the service user (the individual or the patient) and not the service provider and arising from the operation Nursing Homes Support Scheme pursuant to the provisions of the Nursing Homes Support Scheme Act 2009 ("the Fair Deal Act"), Birmingham J. found that the expenses of Glendale (qua nursing home operator) were not defrayed by the Exchequer.
112. The decision in Glendale is consistent with the proposition that the first port of call in the exercise of statutory interpretation is the ordinary and plain meaning of the words used. When applied to specific facts and ratio of the Glendale decision, nothing turns on the reference by the court in that case to expenses being defrayed by the HSE rather than "out of moneys provided by" the HSE.
113. The examples cited at paragraph 27[23] of the judgment in Glendale are analogous, of course, to the facts in Glendale, i.e., in relation to the provision of assistance to patients or individuals in nursing homes under the Nursing Home Scheme. They do not, however, apply to the facts in the Redwood case or the Nua case.
114. In further contrast, in the Redwood and Nua cases, there is no question of any expenses under the Nursing Home Scheme or an equivalent scenario where financial support is being made available to the resident, individual or patient. Under the Nursing Home Scheme, the HSE (the Exchequer) is making a financial contribution to ÔindividualsÕ towards the cost of their nursing home care. A private contract is made between the resident (their representative or a relative) and the nursing home provider to their cover their residence.
115. In further contrast, in the cases of Redwood and Nua, the HSE (the Exchequer), in making arrangements for the placement of individuals at care facilities, is entering into contractual arrangements with a service provider under a Service Level Agreement/Arrangement to fund all of the costs associated with or incurred in the provision of residential and specialist care services for the purpose of caring for elderly, handicapped or disabled persons.
116. As mentioned at the beginning of this judgment (in the cases-stated for both Nua and Redwood), the contract Ð the Service Level Agreement/Arrangement Ð which covers an individualÕs placement in a care facility is between the HSE and the service provider. The cost to the HSE (Exchequer) of the funding of their care is not based on a percentage of an individualÕs income and assets, but rather on a detailed itemised costing which covers a range of matters in the provision of an individualÕs accommodation, health and social care needs and these are wholly defrayed out of moneys provided by the HSE.
117. The proceedings in Glendale, on the other hand, related to the Nursing Home Support Scheme Act 2009, which sets out prescriptive and extensive provisions regarding what is commonly known as the Fair Deal Scheme and the operation of the National Treatment Purchase Fund which is a different regime to the pricing process for the care provision of service users. Further, the focus in Glendale arising from the operation and application of the 2009 Act and the Fair Deal Scheme Ð as a matter of statutory interpretation Ð was on the service user, the individual and the elderly person and the not the service provider and this, of course, has no application in the Nua and Redwood cases.
118. As mentioned earlier, I do not believe that anything turns on the reference by the court in Glendale to the HSE or the Exchequer defraying the expenses of Glendale (for example at paragraphs 20 and 24 of the judgment): first, the principal distinction the court was making in Glendale was that as between the individual/service user (i.e., elderly person) in the context of the statutory Fair Deal scheme which applied, on the one hand, and the service provider, on the other hand; second, on the particular facts of Glendale, whilst there was evidence that more than half of GlendaleÕs income was derived from the Exchequer/HSE, the court was not satisfied that GlendaleÕs expenses had been wholly or mainly defrayed as it had not, in that case, provided sufficient details of its expenditure.
119. While these further differences and distinctions with Glendale are highlighted in the respective cases stated of Nua and Redwood (quoted earlier), taking the case of Redwood, for example, the prŽcis of evidence of John OÕHalloran, Financial Controller, dated 13th January 2020 makes the following points at paragraphs (5) to (9):
"(5) The residents of the Residential House were placed by the Health Service Executive ("HSE") on foot of service level agreements between the HSE and Redwood whereby Redwood agreed to provide accommodation, food and support services to the residents at an agreed rate. A copy of the Service Arrangement dated 14th January 2029 between the HSE and the Talbot Group together with relevant extracts from the Service Schedules applicable to the five residents are attached at Appendix 1. There is no direct agreement between Redwood and each individual resident.
(6) The full costs of running the Residential House are funded by the HSE and there is no other source of funding for expenses incurred. Each month, Redwood invoices the HSE or the relevant HSE Area the total cost of providing accommodation, food and support services to each individual resident. This is also the case for other facilities operated by Redwood and the Talbot Group.
(7) For the month of December 2019, the amounts invoiced to the HSE, or HSE Area, for the Residential House varied between [ÛÉ] [24] and [ÛÉ] [25] per resident. Copies of the December invoices in respect of the five residents, redacted as appropriate, are attached at Appendix 2.
(8) As an organisation in receipt of Exchequer Funding under the Service Arrangements, Redwood, is obliged by DPER Circular 3/2014 to comply with core principles in the administration and management of funding from exchequer sources, including Clarity, Governance, Value for Money and Fairness. In this regard see Schedule 6 to the Service Arrangement) section 39 of the Health Act, 2004) at p.38.
(9) The Exchequer Funding referred to above is not received by Redwood under the Nursing Homes Support Scheme Act 2009".
120. At paragraph 26 of his judgment in Glendale, Birmingham J. sets out what was ÔactuallyÕ happening in that case:
"(26) Over and above what the HSE intends to do, what it is actually doing is contributing to the cost of care for the individual elderly person[ [26]], alleviating the burden on the elderly person in obtaining care. It might be said that the State/HSE defrays the expenses of the individual elderly person in need of care but it cannot be said that they are defraying the costs of Glendale." [27]
121. Again to summarise the position, the Fair Deal Scheme which was the central issue in Glendale provided a contribution towards the cost of an individualÕs care based on the persons financial means at the time of application. In Glendale, the court found, in the context of a nursing home, that what the State was doing was providing support to individuals as a service user and not to the service provider (and Nua and Redwood are service providers). In the case of Redwood and Nua, the Exchequer (HSE) pays all the moneys used in the care of the patients to the patientÕs provider and they defray their expenses out of those moneys whereas in Glendale the focus was on the patient and the statutory provisions of the Fair Deal Scheme. In the Redwood case, for example, the Valuation Tribunal found (at paragraph 8.3) that all of the money was provided to Redwood by the Exchequer and that any expenses incurred by Redwood in connection with their activities were paid or defrayed out of the money that comes in from the HSE. This finding was also subtended, for example, in the evidence adduced by Mr. OÕToole under questioning from counsel for Redwood. In the context of the nature of the appeal before me, this and the other evidence (including documentary evidence) led to a finding of the Tribunal based on the evidence before it.
122. It is also sought to be argued on behalf of the Commissioner, in these appeals, that the Service Arrangements (agreements) with the HSE came within the framework of Ôsection 38Õ (of the Health Act 2004). This contention was opposed on behalf of Nua and Redwood as (i) not an issue that could be raised now in these appeals because it had not been raised before the Valuation Tribunal, and (ii) in any event, was not a correct description of the status of Nua or Redwood.
123. On behalf of the Commissioner, for example, it was submitted that sections 38 and 39 of the Health Act 2004 ("the 2004 Act") represented different ways in which the HSE could fund services, and whilst it was accepted that these provisions may not be relevant to the interpretation and application of Schedule 4 of the 2001 Act (in that, for example, different phraseology is used, and contributing to expenses under the Health Act 2004 and defraying the expenses under the Valuation Act are not the same), it was nonetheless posited when considering the question of how the Exchequer pays out money, that section 38(1) of the 2004 Act provided that the HSE, for example, can enter into an arrangement for the provision of services and they can enter into an arrangement under section 39(2)(a) of the 2004 Act to contribute to expenses.
124. It was, however, accepted that these matters were not raised before the Valuation Tribunal.
125. An appeal under section 39 of the 2001 Act are appeals on a point of law and are not a re-hearing; an appellate court cannot, therefore, retry issues and substitute its own view of the merits for that of the primary decision-maker: An Bord Banist'ochta, Gaelscoil Mosh'ol—g v The Department of Education [2024] IESC 38.
126. This issue was also addressed by the Court of Appeal, by analogy, in the context of a case stated pursuant to section 941(6) of the Taxes Consolidation Act 1997 (which is similar to the provisions of section 39(5) of the 2001 Act) in Murphy v The Revenue Commissioners [2023] IECA 160 where, in the judgment of the court (Donnelly, Noonan and Haughton JJ.), Haughton J. referred to the judgment of OÕDonnell J. (as he then was) in Lough Swilly Shellfish Growers Co-Operative Society Ltd & Anor v Bradley & Anor [2013] IESC 16 (at paragraph 27) and specifically in the context of section 39(5) of the 2001 Act, the judgment of the Supreme Court (MacMenamin J.) in Westlink Toll Bridge Ltd v Commissioner of Valuation and Fingal County Council [2013] IESC 42 and held that as Ôthe new matterÕ had not arisen in the case stated, it was not, therefore, within the jurisdiction of the High Court, on the appeal by way of case stated, to embark on a consideration of it.
127. Further, in Rotunda Hospital v Information Commissioner [2013] 1 I.R. 1 Fennelly J. observed at pp. 30-31 that "I do not accept that the new point should have been considered either because many other cases raised the same issue or because it was a matter of importance. The Act is clear: an appeal to the High Court lies only in respect of a point of law. It must be a point of law involved in the decision under appeal. Thus, I do not think the High Court should have entertained the point."
128. Similarly, in OÕSheehan v RTB & Anor [2024] IEHC 521, the High Court (Simons J.) stated at paragraph 11 that "it should be emphasised that the point of law must arise from the determination under appeal. The High Court is not hearing the matter de novo but rather is considering the legality of the decision of the Tenancy Tribunal. The High Court should normally decline to decide a point of law which had neither been argued before, nor decided by, the Tenancy Tribunal."
129. Simons J. referred, by analogy, to Governors & Guardians of the Hospital for the Relief of Poor Lying-in Women, Dublin v Information Commissioner [2011] IESC 26; [2013] 1 I.R. 1 (at paragraph 90 of the reported judgment), Hyland v Residential Tenancies Board [2017] IEHC 557 (at paragraphs 25 to 27) and Ashe v Residential Tenancies Board[2023] IEHC 627 (at paragraphs 24 to 27) and observed that "it is impermissible to attempt to raise a factual issue, for the first time, in the context of an appeal on a point of law".
130. In this case, the Ôsection 38/39Õ point was not raised before the Tribunal and therefore does not arise in these appeals. In addition, it was submitted that, if anything, Nua and Redwood were "section 39" bodies and did not come within "section 38" of the 2004 Act.
131. In any event, as just stated, I do not consider that the point made on behalf of the Commissioner in relation to the alleged Ôsection 38 statusÕ is a matter which is caught by these appeals or that it is required to be considered when interpreting the provisions of Schedule 4, reference number 14(b) of the 2001 Act.
CONCLUSION
132. These appeals raise a question of statutory interpretation.
133. In summarising (and paraphrasing) the authorities set out earlier in this judgment, having regard to the fact that language, context and purpose are in play with none ever operating to the complete exclusion of the other, I have considered what, in my view, is the correct construction of the language and words used in Schedule 4, reference number (paragraph) 14(b) of the 2001 Act in its immediate and proximate context, having regard inter alia to its relationship with the 2001 Act, the location of the 2001 Act in the legal context in which it was enacted, and the discernible objective of the 2001 Act in providing for (or recasting) the ÔexemptionsÕ in Schedule 4 of the 2001 Act.
134. In so doing, I consider that the Valuation Tribunal reached the correct determination in its respective determinations in each of the cases, i.e., that the application of Schedule 4, reference number 14(b) of the 2001 Act resulted in a nil valuation in respect of the Nua and Redwood properties.
135. Accordingly, in ascertaining the plain and ordinary meaning of Schedule 4, reference number 14(b) of the 2001 Act by reference to its language, place, function and context, my answers to the questions posed in the Nua case is as follows:
(1) Having regard to the evidence before it, did the tribunal err in law in determining that the relevant property fell within the ambit of the exemption provided for at paragraph 14(b), schedule 4 of the valuation act 2001 to 2015?
Answer: No
(2) The second question no longer arises.[ [28]]
(3) Did the tribunal err in law and/or in fact in holding that there was no defrayal by the HSE of the expenses of the service users in the present case and that the Appellant was provided with monies from which it defrayed the expenses of carrying out its activities?
Answer: No
(4) Did the Tribunal err in law and/or in fact in determining that the expenses incurred by the Appellant in carrying out its activities were defrayed wholly or mainly out of moneys provided by the Exchequer?
Answer: No
(5) Did the Tribunal err in law in its interpretation and application of the decision of the High Court in Glendale Nursing Home v The Commissioner of Valuation [2012] IEHC 254 to the present case?
Answer: No
136. My answers to the questions posed in the Redwood case are as follows:
(1) Having regard to the evidence before it, did the Tribunal err in law in determining that the relevant property fell within the ambit of paragraph 14(b), Schedule 4 of the Valuation Act, 2001 as amended?
Answer: No
(2) Did the Tribunal err in law in its interpretation of the term "defrayal of expenses"? Specifically, did the Tribunal err in law in determining that where the payments are calculated on the costs of the service users, and only paid relating to any person who might be present from time to time, that nonetheless amounts to a defrayal of the AppellantÕs expenses, as opposed to income, contrary to the decision in Glendale[ [29]] ?
Answer: No
(3) The third question no longer arises.[ [30]]
137. I shall put the matter in for mention before me on Tuesday 8th April 2025 at 10:30 to deal with the question of costs and any ancillary or consequential matters that arise.
Appearances:
(i) Owen Hickey SC and Proinsias îÕMaolchalain BL appeared for Redwood and Nua in relation to each of their appeals, instructed by Byrne Wallace Shields LLP.
(ii) Patrick Leonard SC and David Dodd BL appeared for the Commissioner for Valuation in both appeals, instructed by the Chief State SolicitorÕs Office.
CONLETH BRADLEY
21st March 2025
[1] Ronan Keane, The Law of Local Government in the Republic of Ireland (The Incorporated Law Society of Ireland, 1982, First Ed.).
[2] Patrick A. Butler S.C., Keane on Local Government (First Law, The Law Society of Ireland, 2003, Second Ed.).
[3] The words "reference number" and "paragraphs" are used interchangeably in this judgment, e.g., Schedule 4, reference number 14 (b) or Schedule 4, paragraph 14(b).
[4] Section 2 of the Health Act 2007 defines Ôdesignated centreÕ as meaning an institutionÑ
(a) at which residential services are provided by the Executive, the Agency, a service provider under this Act or a person that is not a service provider but who receives assistance under section 39 of the Health Act 2004 Ñ (i) in accordance with the Child Care Act 1991, (ii) to persons with disabilities, in relation to their disabilities, or (iii) to other dependent persons, in relation to their dependencies,
or
(b) that is a special care unit,
(c) that is a nursing home as defined in section 2 of the Health (Nursing Homes) Act 1990, but does not include any of the following: (i) a centre registered by the Mental Health Commission; (ii) an institution managed by or on behalf of a Minister of the Government; (iii) that part of an institution in which the majority of persons being cared for and maintained are being treated for acute illness or provided with palliative care; (iv) an institution primarily used for the provision of educational, cultural, recreational, leisure, social or physical activities; (v) a children detention school as defined in section 3 of the Children Act 2001.
[5] The point is made in the partiesÕ submissions that the word ÔhandicappedÕ remains a word employed in the legislative text notwithstanding its disuse in practice and noting that it is also followed by the word ÔdisabledÕ which has replaced it in practice. In the exercise of statutory interpretation, I am required to refer to all of the words used in the legislative provision.
[6] Glendale Nursing Home v The Commissioner of Valuation [2012] IEHC 254 (unreported, High Court Birmingham J. (as he then was), 15th June 2012.
[7] As amended.
[8] For example, Appeal No: VA17/2/017: judgment of the Valuation Tribunal Appeal dated 18th July 2018; Appeal No. VA19/5/0715: judgment of the Valuation Tribunal dated 24th May 2023; Appeal No: VA19/5/0716: judgment of the Valuation Tribunal dated 6th May 2022;
[9] Heather Hill Management Company v An Bord Plean‡la [2022] 2 ILRM 313, [2022] IESC 43. See A, B & C (A Minor Suing by His Next Friend A) v The Minister for Foreign Affairs and Trade [2023] IESC 10, [2023] 1 ILRM 335 and TRI (a minor suing by his mother and next friend, LB) v The Minister for Foreign Affairs and the Minister for Justice [2025] IESC 7.
[10] Dunnes Stores v The Revenue Commissioners [2019] IESC 50 per McKechnie J.at paragraph 62.
[11] Heather Hill Management Company v An Bord Plean‡la [2022] IESC 43; [2022] 2 ILRM 313 per (Brian) Murray J. at paragraph 109.
[12] Emphasis added in this judgment.
[13] Emphasis added in this judgment.
[14] Emphasis added in this judgment.
[15] Mr. Justice Brian Murray.
[16] See also The People (DPP) v FN [2022] IESC 22.
[17] For example, it is pointed out on behalf of Nua and Redwood that a number of references are incorrectly made in the submissions on behalf of the Commissioner (at paragraphs 13, 30, 46, 52, 58, 60 and 62) to the effect that HSE/Exchequer was defraying the expenses of Nua.
[18] Emphasis and underlining added in this judgment.
[19] Emphasis and underlining added in this judgment.
[20] In Glendale, the tribunal relied on the following definition in the Oxford English Dictionary, 2nd Edition, Volume IV: "1. To pay out, expend, spend, disburse (money). 2. To discharge the (expense or cost of anything) by payment; to pay, meet, settle. 3. To meet the expenses of; to bear the charge of; pay for. 4. To pay the charges or expenses of (a person); to reimburse, to entertain free of charge."
[21] Emphasis and underlining added in this judgment.
[22] Emphasis and underlining added in this judgment.
[23] It was in this context that Birmingham J. outlined the following examples at paragraph 27 of his judgment in Glendale Nursing Home v The Commissioner of Valuation [2012] IEHC 254: "(27) If a delicatessen draws its clientele to a significant extent from amongst the ranks of public servants, could it seriously be said that the State, as pay master of the public servants, was defraying the expenses of the delicatessen? If an adjoining cafe is frequented by employees of a large company that provides its employees with luncheon vouchers redeemable at various locations across the city, could it be said that the employer in providing the vouchers which were used in the cafe was defraying the costs and expenses of that cafe? If a public house draws its clientele from the students of a third level college who are in receipt of grant cheques from the Department of Education could it be said that the expenses of the public house are being defrayed by the Department?"
[24] Amount redacted.
[25] Amount redacted.
[26] Emphasis and bold added in this judgment.
[27] Emphasis and bold added in this judgment.
[28] The second question was: "Did the Tribunal err in law and/or in fact in determining that the HSE and TUSLA provided funds to the Appellant as a service provider rather than providing the funds to the service users cared for by the Appellant?"
[29] Glendale Nursing Home v The Commissioner of Valuation [2012] IEHC 254 (unreported, High Court Birmingham J. (as he then was), 15th June 2012.
[30] The third question was: "Did the Tribunal err in law in determining that a body carrying on an activity for profit was entitled to avail of the exemption applied?"