Matt Carthy (Cavan-Monaghan, Sinn Fein) | Oireachtas source

The memo I refer to which lays out the legal rationale states:

The particular difficulty with challenging such a finding by the appeals office is that it raises a wider issue, that the legal basis under which payments were collected from residents and community homes, if it were found by the High Court that they were not recoverable health charges, there appears to be no other legal basis for the levelling of such charges.

This is not a grey area. In terms of the legal advice and the information provided to Ministers, this was a slam dunk that the State was liable to pay for them. Nevertheless, according to this memorandum, many people, beyond the 500-odd I mentioned, decided not to appeal, probably on the basis of advice from the HSE that the payments did not come within the definition of the recoverable health charges. If these cases had materialised, it would have created a potential liability of some €360 million, but that liability has never been included in the HSE's accounts.

Who received long-term payments in respect of section 38 and section 39 residential care? Provision was made for about €20 million, which, according to the average the witnesses cited in response to previous questions, would apply to those approximately 500 people who made appeals? We know, however, that almost 10,000 people in addition had applied and qualified but did not appeal on the basis of advice from the HSE. Has any measure been taken to ensure those people will be recompensated?