Ms Emily O'Reilly:

I thank the committee for the invitation to attend this meeting. I am very pleased the committee intends to discuss the two special reports which I have laid before the Dáil and Seanad in the past six weeks.

The main purpose of these reports is to inform the Houses of the Oireachtas that the Minister for Health has rejected recommendations made by me following my investigations of complaints relating to the mobility allowance scheme and the motorised transport grant. In fact, the broad thrust of the rejected recommendations is the same in each case. For the purposes of today's meeting, it is fair to say that the Minister has rejected the same recommendation in two slightly different contexts. In the case of the motorised transport grant, I also made recommendations to the HSE. It is interesting to note that the HSE has accepted those recommendations in full and is now in the process of implementing them.

Following investigation, I found that both the mobility allowance scheme and the motorised transport grant are being operated on the basis of eligibility conditions which breach the provisions of the Equal Status Acts.

These findings are not disputed by the Minister. I recommended in each case that the Minister take action to ensure the scheme in future will operate in accordance with the Equal Status Acts. There was nothing radical or dramatic involved in asking the Minister to ensure these two schemes respect the law of the land. One of the recommendations I made to the HSE, in the case of the motorised transport grant, was broadly similar to the that which was made to the Department. The HSE is implementing the latter. The Minister has rejected both recommendations and stated that to accept them would create financial liabilities which the State cannot afford. I do not accept that acting on my recommendations necessarily involves increased spending. Even if it did, however, that is not an excuse for an illegality. Instead, the Minister has allowed the two schemes to remain in operation in the full knowledge that they breach the Equal Status Acts. This failure to abide by the provisions in those Acts is now in its 12th year and the Department has long been aware of that fact.

It should not have been necessary for my office to draw public attention to this breach of the law. The Department should have dealt with the matter years ago. In fact, the Department did deal with one aspect of it in 2008 when it decided to remove the upper age limit for the motor transport grant. This happened because the Department was then faced with proceedings before the Equality Tribunal. Rather than allow those proceedings to go ahead, the Department decided to remove the upper age limit. It did so of its own volition and without bringing the matter to Government for decision. The Department acknowledged at that stage that the upper age limit was contrary to the Equal Status Acts.

In this short presentation I have decided not to deal in any detail with either of the two schemes in question, although I will be happy to answer any questions which members may wish to pose. Important as these schemes are for the people who should benefit from them, of far greater importance is the challenge thrown down by a Minister and his Department who, it would seem, refuse to respect the law of the land. However, I cannot imagine that Parliament would find this behaviour acceptable. Implicit in the Minister's position is an expectation that the public generally, and Oireachtas Members more specifically, will agree that his rejection of my recommendations is rational and reasonable. On this approach, the law is optional and not binding; we can decide when it suits us to obey the law and we can disregard the law where it is troublesome or inconvenient to abide by it.

I should inform the committee that the Department of Health has a long history of, to put it mildly, carelessness with regard to the law. This has been the case irrespective of which political party or coalition has been in government. My predecessors and I have seen this at close quarters and I would like to recall for members just three examples of such carelessness.

The first example relates to the scheme of nursing home subventions which predated the present nursing home support scheme, which is also known as the fair deal scheme. In 1993 the then Minister for Health made a number of regulations to give effect to the scheme of subventions for older people choosing to go into private nursing home care. These were made under the Health (Nursing Homes) Act 1990. One of them provided for a means test on the older person in order to determine the level of subvention, if any. Built into the means test of the older person - the applicant - was a mechanism under which the means of any child or children of the applicant would be assessed and part-attributed to the older person. In effect, the regulations purported to make adult children partially liable for the support of an elderly parent.

While I am not commenting on whether this approach was good or bad, it is fair to say that a good first year law student would know that a liability of this kind may be imposed only on the basis of primary legislation. The Department received clear legal advice before making these regulations that such a liability provision could not be imposed by means of secondary legislation. Nevertheless, the then Minister made regulations to this effect and subvention applicants were assessed by reference to the means of their adult children. Inevitably, these arrangements gave rise to many complaints to my predecessor, the late Kevin Murphy, who cautioned the Department on several occasions that this aspect of the regulations was, as lawyers like to say ultra vires, or beyond, the powers of the Minister. Nevertheless, until 1999 the Department encouraged the then health boards to continue with this assessment practice.

When Kevin Murphy investigated this practice, along with a number of other subvention practices which proved to be illegal, he found that the then Minister had made the regulations despite very clear legal advice in the period 1992-1993 that such a provision could not be made by regulation. Furthermore, he discovered that during the period 1993-1999 this legal advice was reiterated by the Minister's own legal advisers and by various health board legal advisers. For six years the Department effectively gambled that it would get away with something which it knew from the outset was illegal. Ultimately, the then Minister was obliged to drop the assessment relating to adult children and pay compensation to those affected by the illegal assessments. Approximately £6 million had to be paid in compensation.

The second example of the Department's disregard for the law is in quite a different league. This involved the Department presiding over the illegal charging of medical cardholders for long-stay care provided by the then health boards. This practice persisted from 1976 until 2004, despite the fact that the Department had known since 1976 that the charges were illegal. The Department received further legal advice at various stages after 1976 that they were illegal. In addition, the question of the legality of these charges was continually raised with the Department by the Ombudsman from 1988 onwards. To be fair, my predecessors, Michael Mills and Kevin Murphy, drew this issue to the attention of the Oireachtas in seven separate annual reports between 1988 and 2003. Kevin Murphy also drew attention to the matter in an oral presentation to the then Joint Committee on Health and Children in June 2001. Nevertheless, the illegal charging continued until 2004 when the then Minister, Mary Harney, finally put a stop to it. Ms Harney commissioned an enquiry from Mr. John Travers and when his report was published in March 2005, the then Minister expressed her own amazement at what had happened and stated:

More than 300,000 people were charged illegally during 28 years. This was entirely wrong. They were old, they were poor, they suffered from mental illness, they had intellectual disabilities, they were physically disabled. As vulnerable people, they were especially entitled to the protection of the law and to legal clarity about their situation. [...] We are a society ruled by law. No-one and no organisation can dispense with or alter a law

What Mr. Travers discovered - and what the Ombudsman had not been told in many encounters with it since 1988 - was that the Department had known since 1976 that the charges were illegal.

In an attempt to minimise its liability for compensation in the face of this illegality, the then Government brought forward legislation seeking to give retrospective authorisation for the charges. However, this aspect of the legislation was found to be unconstitutional by the Supreme Court. Ultimately, the health repayment scheme was put in place to compensate those who had been charged illegally. To date, approximately €500 million has been paid out under the scheme. This figure could be considerably higher when the High Court rules on an appeal by the HSE against an appeals officer's decision that 850 residents in three institutions - Cheeverstown House, St. Michael's House and the Daughters of Charity - are entitled to compensation.

The third example of Department of Health carelessness with the law has the potential to create a liability on the State even greater than that resulting from the illegal charging issue. This is a matter with which I dealt in considerable detail in my 2010 report, Who Cares? An Investigation into the Right to Nursing Home Care in Ireland. The issue in question is that for 40 years, since the Health Act 1970, the health boards had an obligation to provide long-stay care for older people. However, thousands of people needing care failed to obtain places in public nursing homes and, as a consequence, had no choice but to avail of expensive private care. Many of these individuals then sought to be compensated for the costs they had incurred as a result of the failure of the then health boards to meet their obligation. This is a complex issue which there is not time now to discuss in any detail. In very brief terms, however, the Ombudsman's office has been receiving complaints on this matter since the 1980s. My predecessors and I have been expressing the view, for decades now, that the health boards, which have been replaced by the HSE, have a liability to compensate in those cases where there was a failure to provide long-stay care and private costs were incurred. There have been many opportunities for the Department to bring new legislation to the Oireachtas which would render the actual practice legal beyond any doubt. These opportunities were not taken.

As I outlined in the Who Cares? report, more than 300 individuals, or their representatives, have begun High Court proceedings against the HSE, the Department and the State seeking compensation for the private nursing home costs incurred. Most of these cases have been in train for several years, some since 2005. No case has yet come to hearing and judgment in the High Court. In the Who Cares? report I suggested that the State parties are following a strategy which seeks to ensure that none of these cases will ever come to hearing. I noted that there appears to be an approach of intentional delaying tactics so as to delay cases coming to hearing. I also commented that where a particular case reaches the point where an order for discovery has been made against it, the State side offers a settlement. These settlements are made subject to a confidentiality clause and both the HSE and the Department have refused to give any details to my office or to the Dáil or Seanad in respect of them. However, I understand the settlements involve payment of a portion of the amount claimed plus costs.

In the course of and following the investigation relating to the Who Cares? report, the Department rejected any suggestion that it was pursuing a strategy of ensuring that none of the cases to which I refer will come a hearing and judgment. The Department asserts that it has a solid defence and that the delays in progressing the cases are as likely to rest with the plaintiffs as with the defendants. Nevertheless, in the two years since the publication of the Who Cares? report, none of these cases has gone to hearing and judgment. However, several more cases have been settled out of court and I understand that the terms relating to them were broadly along the lines of previous settlements. It seems clear that the Department is involved in a careful strategy of risk management. This risk would not exist if the Department had had proper regard to the legal obligation on health boards to provide long-stay care. If, by any chance, one or more of these cases comes to a hearing and judgment in the High Court and if, as I suspect might happen, that judgment goes against the State parties, the financial implications would be truly horrendous in terms of the amount of compensation likely to be payable to thousands of claimants.

In my Who Cares? report I deliberately, if reluctantly, refrained from making any recommendation on compensation for the thousands of people adversely affected by the denial of their right to long-stay care.

Even though I found that these people had been denied their right to long-stay care and had incurred considerable costs as a consequence, I decided against a recommendation for compensation. My decision was taken on the basis that in the light of the State's finances it was not in the overall public interest that I should recommend redress. The Department of Health had mentioned during that investigation that the costs involved in providing compensation could amount to several billion euro. I asked the Department of Health to consider some limited scheme of redress, in exceptional cases, on the grounds of financial hardship but, regrettably, it did not respond to this request.

As the Department represents it, the recommendations I have made are almost reckless from the perspective of the public finances. Let me make it very clear that it is not my objective to expose the State to heavy, even unsustainable, financial costs. What I am pointing out is that the Department of Health - because of what appears to be a culture of prevarication, disregard for the law and an inability to take hard decisions - has already caused the State to incur enormous costs and looks set to continue on that path.

What is equally concerning, however, is the non-financial costs associated with the Department's behaviour. To return to the two reports before the committee, it seems the Minister's disregard for the Equal Status Acts can breed nothing but cynicism among the wider public. Why should the owner of a pub or a hotel respect the terms of the Equal Status Acts - for example, by treating Traveller customers the same as all other customers - when the Minister for Health does not, apparently, have to abide by these Acts also?

The Government parties in their programme for Government make specific commitments under the heading of "Equality". The Government "believes that everyone has the right to be free from discrimination and that we will all benefit from living in a more equal society". The programme for Government goes on to state: "We will require all public bodies to take due note of equality and human rights in carrying out their functions". Is this meant to apply to the Department of Health? Clearly, the answer is "Yes" and this was confirmed as recently as 21 November last by the Minister for Public Expenditure and Reform. In his reply to a parliamentary question on equality proofing budget proposals, the Minister referred to the programme for Government commitments on equality and human rights; he then added: "I would also remind the Deputy [Mary Lou McDonald] that the State and its bodies must, of course, comply with all provisions of equality legislation in the development and delivery of policies and services." This is an unequivocal commitment; it is not contingent on the health of the public finances or on the speed with which policy proposals can be brought to Cabinet.

While the mobility allowance scheme and the motorised transport grant may not, in their own right, be of huge significance, and may not survive the current round of cutbacks, the decision of the Minister for Health to reject recommendations to render these schemes compliant with the Equal Status Acts is of major significance. The decision of the Minister for Health to reject my recommendations amounts to an unequivocal statement that the law is optional.