Peadar Tóibín (Meath West, Sinn Fein)
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The committee is now sitting as the Joint Sub-Committee on the Ombudsman. I ask all present to ensure that all mobile phones are switched off as they interfere with the recording of proceedings.

The sub-committee is to consider two items. First, the report by the Ombudsman entitled, Too Old to be Equal? - A Follow Up. This is an investigation by the Ombudsman into the refusal by the Department of Health of a mobility allowance to people over 66 years of age. Second, the report by the Ombudsman on the refusal by the Department of Health to implement a recommendation of the Ombudsman concerning the motorised transport scheme.

I am pleased to welcome the Ombudsman, Ms Emily O'Reilly, and Mr. Fintan Butler, senior investigator, the Office of the Ombudsman. These are important issues relating to the delivery of public services for which this committee has an oversight role.

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they are to give this committee. If a witness is directed by the committee to cease giving evidence in relation to a particular matter and the witness continues to so do, the witness is entitled thereafter only to a qualified privilege in respect of his or her evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and witnesses are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise nor make charges against any person or persons or entity by name or in such a way as to make him, her or it identifiable.

Members are reminded of the long-standing parliamentary practice that they should not comment on, criticise or make charges against a person outside the House or an official by name in such a way as to make him or her identifiable.

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

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.

Peadar Tóibín (Meath West, Sinn Fein)
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It is a very interesting report and I commend the work the Ombudsman's office has done on it. It seems quite shocking that the State would be flouting the law. We as a committee have come across that experience already in our engagement with An Coimisnéir Teanga. If the State does not function on the basis of law, that is a threat to the democratic nature of the State. This committee was designed to oversee public service delivery. We note from the Ombudsman's presentation that for years Ombudsmen delivered information to the Houses of the Oireachtas and for years that information was flouted. My view is that we as a committee would not be doing our job or functioning properly if we were to allow that practice to continue in this State.

I have a few questions for the Ombudsman. Is it the case that the Minister is in conflict with the HSE? The HSE has accepted and is about to deliver in this respect but the Minister has not and is not going to deliver, is that the case? What are the financial implications of that and what would be the legal route for redress in this regard? I do not mean redress for the particular individual but in terms of trying to resolve the matter of Departments operating outside the law. I ask the Ombudsman to defer answering my questions until I take questions from one other member and thereafter I will take questions from two members at a time. The next speaker is Deputy Healy-Rae.

Michael Healy-Rae (Kerry South, Independent)
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I thank the Ombudsman and Mr. Fintan Butler, the senior investigator for her office, for coming here today and putting forward an excellent report which is of vital importance. As the Ombudsman rightly stated the issue is not only this case, which she rightly highlighted, with regard to the future viability of that scheme but the application of the Equal Status Acts. Are Departments bound by law in the same way as are the citizens of this State? That is what is of paramount importance here. Every business person and citizen must obey the laws and rules of this land to the best of their ability at all times. It is not optional or correct for successive Ministers to ignore advice. I do not blame anybody in any Department at any time or any individual for making an error if one is made. I am of the firm belief that the person who never made a mistake never made anything. That was the way we were brought up, namely, that people in trying to do things and trying to help people will mistakes in life. We all do, but it is another matter when advice on issues of paramount importance is not taken by a Department, Minister, Government and indeed successive Governments. I was a member of the former Southern Health Board when the initial controversies arose and Departments were giving advice on the nursing home changes. I stood up at health board meetings and said that was wrong and I and others were ignored. I was just an ordinary member of a local authority. Taking no notice of the fact that what I said at the time was ignored, the advice of the Ombudsman at that time was ignored and eventually the outcome was that people rightfully received compensation. Nobody wants to see the State being faced with a massive legal or compensation bill but if that is to be the case so be it. It is not the fault of the individuals concerned or the fault of the people of this State that Departments believe they can operate outside the law and can dip in and out in terms of the application of the Equal Status Act to one or other sector of society. In other words, its approach is: do as we say but not as we do.

I genuinely thank the Ombudsman for the great service she and her office are giving, and that her predecessors have given, to the people of the country in their work. Hopefully, Departments, Ministers and the Government will have to listen. For any Minister or Department to dismiss a report and work such as this is nothing short of an outrageous scandal and abuse of power, and that should not be tolerated by any one of us. I very much thank the Ombudsman and Mr. Butler for being here today.

Peadar Tóibín (Meath West, Sinn Fein)
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I ask the Ombudsman to respond to those two questions.

Ms Emily O'Reilly:

The Chairman pointed out an interesting conundrum in regard to the HSE versus the Department of Health. We are slightly puzzled about that as well. In regard to the motorised transport grant, the HSE has fully accepted the recommendations and that includes the recommendation that it accepts the broader definition of disability when accessing people for eligibility for it. The Chairman has a letter from Tony O'Brien, the director general designate of the HSE, or is he the director general now?

Mr. Fintan Butler:

Yes, director general designate.

Ms Emily O'Reilly:

In it he states he wishes to advise that the HSE is accepting our recommendations in full and Greg Price, director of advocacy, will forward an implementation plan to us in the next two weeks. He further thanks us for the report, for the thoroughness of our investigation and so on. I also have a letter from the Secretary General of the Department stating that the recommendations, if implemented as outlined, would create liabilities that the State could not afford. He states that the Department will look into this and is reviewing all of this but that in the current financial environment this would prove very challenging to achieve and he can give no assurances in this regard, and that is a reference to meeting the requirements of the Equal Status Acts. In other words, the HSE has accepted our recommendations on the motorised transport grant. It is looking at about a dozen other cases in a particular area.

Mr. Fintan Butler:

Actually much more than that.

Ms Emily O'Reilly:

It will use our recommendations as the basis for deciding on applications whereas the Department of Health, in the same breath, is saying it is not accepting that. I am not sure how the HSE and the Department of Health reconcile that. The HSE is acting in a way that the Department of Health says it cannot because of financial costs.

On how people can get compensation for this, the Department and the HSE paid out compensation in regard to the mobility allowance grant in one particular case and then drew a line under that and that was it. There has been no general payment in this respect.

Generally, people go to the Equality Tribunal where these matters are concerned. However, as I understand it, there is a very small window in which this can be done. It is actually quite difficult and once the window is missed, that is it.

The overall point is the fact that the Department feels it can simply ignore what it is bound to do under the equal status legislation. As I stated in my opening address, it feels that is an acceptable position and that by stating it cannot afford to do what it is supposed to do, it will win acceptance from the public and the Oireachtas. The Department is actually saying it cannot afford to obey the law. As Deputy Healy-Rae stated, there is an onus on everybody to obey the law, but I would have believed there is a particular onus on Departments given their power over the rest of us. I appreciate the financial constraints that exist, that there is considerable work being done in all line Departments and public bodies to try to manage ever-decreasing budgets and that the constraints are an enormous headache for them, but the principle at stake is too great to be ignored.

There are certain steps the Department could take in regard to the schemes. It should not be up to me to point out what they could be. It would be quite cynical if there were a move to abolish certain schemes and to point the finger in the direction of this office in establishing the rationale for doing so. That has not happened but I would be concerned about it.

Many schemes have been trimmed in the budget, and eligibility requirements, etc., have been changed. I am sure this will continue. One step the Department could take is to examine mobility schemes for people with disabilities generally and perhaps devise a new scheme. I do not know. It is not for me to tell the Department what to do but it is for me to report to the committee that the Department feels it can flout the equal status laws.

Peadar Tóibín (Meath West, Sinn Fein)
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People are shocked that if they flout the law, it will always be enforced, but that if the State flouts the law, there is no natural mechanism of enforcement.

Ms Emily O'Reilly:

I presume people could go to the courts.

Mr. Fintan Butler:

These are non-statutory schemes so there is no built-in statutory mechanism for either appealing a decision or going to the courts or anywhere else. There is a mechanism under the Equal Status Act for going to the Equality Tribunal but, as the Ombudsman said, the window for doing so is quite small. In any event, people have a right to go to the High Court seeking a judicial review, but for the people we are talking about, who are unlikely to be very well off, the prospect of going to the High Court for a judicial review it is not realistic given the timescale and cost involved. There are really not very many avenues for seeking redress in the circumstances.

Trevor Ó Clochartaigh (Sinn Fein)
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We have a saying in Irish, "Níor chuir tú fiacal ann." I commend the Ombudsman on that. Her presentation this morning was excellent. I am very alarmed by the reports and by what Ms O'Reilly has told us today. She has been very forthright and clear in what she said in her capacity as Ombudsman. Hers has probably been the most strongly worded presentation I have heard from an ombudsman since becoming a Member. I take this at the level intended.

I agree that redress for the individuals involved is very important, but the Ombudsman is pointing to a much broader issue that concerns challenging the democratic mandate bestowed on all of us, not just on the Office of the Ombudsman. It is not just a case of a Department giving two fingers to the Ombudsman stating it will not do what it says, as it is also a case of it doing the same to all elected representatives in this Parliament. We are charged with enacting legislation which becomes the law of the land. Departments are flagrantly flouting that law; that is the basic issue. This is not the first instance as we have had hearings with An Coimisinéar Teanga in respect of whom I believe there are parallel circumstances. He made recommendations in a report but the Department of Social Protection, under guidance from the Department of Public Expenditure and Reform, has flouted the laws in this regard also. Acht na dTeangacha Oifigiúla, the Official Languages Act, is the law of the land but Departments are choosing not to follow it. The issue for us as a committee is that we must say "Enough is enough" and that this should not be allowed to happen.

Where languages and the rights and obligations of State bodies are concerned, Mr. Justice Hardiman has given an opinion based on a ruling in the Supreme Court case of Ó Beoláin v. Fahy:

The modern State necessarily imposes many onerous duties on citizens in relation to various aspects of life from tax compliance to planning law. Many of these duties are irksome, time consuming and expensive to comply with, but compliance is properly required.

Equally the State itself must comply with its obligations, particularly those enshrined in the Constitution and can no more be heard to complain that such compliance is irksome or onerous than can the individual citizen. In particular, the State cannot be heard to complain that its non-compliance over a period of decades have now rendered present compliance even more difficult.

If we prove the State has a responsibility to act, does this create a de facto right to the relevant service, as was seen in the two cases? If so, does this give the citizen a legitimate expectation that such a right would be upheld? Do the types of reports the Ombudsman and An Coimisinéar Teanga present prove there is a responsibility? If so, does it confer a right on the citizen? If so, does the citizen have legitimate expectation to prosecute that right?

I noted a number of comments implying intentional delay on the part of the Department and that this is a risk-management strategy. The Department may be trying to ensure that the cost imposed on the State is minimised but the point the Ombudsman is raising is that the potential State liability accruing from not addressing this scenario could be much larger. I challenged the Department of Social Protection on this issue when its representatives were present to discuss the ruling of An Coimisinéar Teanga. It was hoped that the matter would be kicked to touch and kept out of the courts in any way possible. It was hoped that some of the petitioners could be sorted out by striking a deal on the steps of the courthouse, thus preventing other potential cases. If a number of landmark cases were taken and others followed suit, the potential liability of the Departments could be much greater than at present. The cost of redress could be higher.

I welcome the Ombudsman's report. It is extremely alarming. This committee should invite the Minister for Health before it to challenge him on the stance he has taken. We should be making the strongest possible statement today that we agree with the Ombudsman's findings, that her ruling should be upheld and that the Department should act immediately to secure redress. I very much thank the Ombudsman for her report.

Susan O'Keeffe (Labour)
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I thank the Ombudsman for the clarity and toughness of her report. It is interesting to note that when the Minister for Public Expenditure and Reform, Deputy Howlin, made his budget statement yesterday, he first opted to speak about the importance of political reform. He reminded everybody that his Department is not just the Department responsible for public expenditure but also the one responsible for reform. Part of the reform agenda was to set up this committee. Therefore, on first examination, this is an opportunity for us not only to commend what the Ombudsman has said but also to do something about it.

The only action I can think of in response to the illegality is to request the Minister of Health to appear before the committee in order that we can have a robust exchange of views on the decision. I accept that other Ministers made similar decisions on other matters, but we cannot question them because we can only question the one who is present.

In regard to the report, Who Cares?, as a separate issue, although part of the same story, Ms O'Reilly has stated she asked the Department of Health to consider a limited scheme of redress, but it did not respond to her request. Does she mean that the Department did not respond at all or was its response unfavourable? What was the nature of the exchange? She was taking on board her wider remit of costs and the public interest in making her recommendation. If the committee is to take the issue of oversight and its relationship with the Office of the Ombudsman seriously, we have no choice but to call the Minister to account for his decision. As Ms Reilly pointed out, the law is not optional.

Ms Emily O'Reilly:

I would welcome the interventions suggested. The reason I outlined the other issues pertaining to nursing homes and the huge bill eventually imposed on all of us as a result of - to put it colloquially - the ducking and diving by the Department for many decades is I wanted to draw attention not only to individual issues but also to the fact that there appeared to be a particular culture in the Department. I have often asked my colleagues in the office what it is about the Department which enables this pattern of behaviour to continue. The Minister is intent on pursuing reform strategies and we are delighted that the Ombudsman (Amendment) Act 2012 has passed and that work is continuing on the freedom of information legislation. However, the phrase "culture eats strategy for breakfast" comes to mind because the issue has transcended political parties and Governments and the same thing keeps happening. The Department has been alerted to an illegality and chosen to ignore it, hoping and crossing its fingers that nobody will find out or that it will not be rumbled. I tell my children that they should behave because eventually things will catch up with them and that is what has happened. It happened most spectacularly in 2004 and the administrative schemes we are discussing offer a similar demonstration of a particular culture, albeit on a smaller scale. I will not tell the committee how it should do its work, but to my mind an exploration of that culture has to be at the core because otherwise it will continue.

On the importance of obeying the rule of law, the country is in extremis in western terms, but it is still reasonably wealthy, even if we are struggling with our budgets. Perhaps the Department thinks what it is doing will be publicly palatable, but I do not accept this. Recently I gave a talk on the institutions of national ombudsmen throughout Europe in which I compared western models to the new models developed following the collapse of communism in eastern, southern and central Europe. I was struck by how quickly people wanted to cling onto offices or create new bodies such as ombudsman offices in order to embed the rule of law. I was also struck by how fragile they could be. I am not comparing what has happened here with what has happened in certain states where democracy is relatively undeveloped, but the same issue arises. We either obey the rule of law or we do not. We cannot cherry-pick the pieces that do not fit. The Department of Health has a section that is dedicated to dealing with disability issues, with a Minister of State assigned to it. It is not as if disability and these schemes are being dealt with by a clerical officer or a handful of people. It cannot be beyond the capacity of that dedicated section to devise a scheme which would be fair and do what it was supposed to do in terms of allowing mobility to those whose mobility is restricted by disability while also meeting the financial criteria.

Susan O'Keeffe (Labour)
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What was the Department's response to the Ombudsman's queries?

Ms Emily O'Reilly:

There was no response.

Susan O'Keeffe (Labour)
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The proposal was put to the Department and there was literally no response.

Ms Emily O'Reilly:

There was no response at all to the report. I seem to recall that it was quite high when I reported on it. What careful word shall I use? I think the Minister was quite-----

Mr. Fintan Butler:

Agitated.

Ms Emily O'Reilly:

Yes, the Minister was agitated about it because it goes to the fact that the Ombudsman's office was, yet again, pointing to an illegality and the Department was not thrilled that we were doing this because of the potential liability involved. As the then Minister Mary Harney had seen the outcome of similar behaviour just a few years earlier, a culture within the Department appears to stick, irrespective of who is there.

Susan O'Keeffe (Labour)
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Was that last year?

Mr. Fintan Butler:

It was November 2010.

Ms Emily O'Reilly:

Two years ago.

Noel Harrington (Cork South West, Fine Gael)
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I thank Ms O'Reilly and Mr. Butler for attending. There is a certain inevitability about the matter. Senator Trevor Ó Clochartaigh referred to kicking it to touch, but a ball kicked to touch is inevitably returned to play. The game does not finish. This issue will have to be dealt with and it may be unpalatable, but that does not mean it is not right. It will have to be dealt with and it will be expensive.

On redress, the committee's role constitutionally is limited owing to the decision in the referendum. We can only highlight the matter and bring it to the Minister's attention. I would certainly like to bring the Minister or the Secretary General and other officials of the Department before the committee. The legality or otherwise of the matter will ultimately be decided in the courts. Has the Office of the Ombudsman considered taking the legal route?

Ms Emily O'Reilly:

In respect of certain matters, there is capacity to state a case to the High Court on a point of law. I am not sure, however, that that would apply in this case, but certainly on the issue of nursing home charges, that is an option.

Mr. Fintan Butler:

These are non-statutory schemes, which means there is no law behind them. There is always the option of seeking a judicial review, but that would not be very practical. With the passing of the Ombudsman (Amendment) Act 2012, the Ombudsman has the capacity to refer a case on a point of law to the High Court. That option was not available when these cases were being dealt with, but I am not sure whether we could have identified a point of law arising from two administrative schemes.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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I am absolutely gobsmacked. What Ms O'Reilly has described is shocking in the extreme.

I was familiar with the scandal of medical card holders effectively being robbed by the State and the State then trying to retrospectively legalise it. It is shocking and outrageous but, oddly, not surprising that this is the culture in Departments. It gives new meaning to the expression that there is one law for them and one law for the rest of us. This behaviour strikes at the heart of people's confidence in our democratic system and the State and drives people around the twist when they witness this level of injustice and flagrant disregard for the law and the rights of citizens. It is interesting that, consistent with the three examples given by the Ombudsman, all the people affected are vulnerable. They are disabled or elderly people and the State or the Government thinks it can get away with ignoring them and denying them their rights by flouting the law because they are in nursing homes or disabled and do not have the capacity to kick up or back against their mistreatment. It is always the most vulnerable who are mistreated in this way and we have to do something about it because it beggars belief.

This is not the just about the immediate issue the Ombudsman has raised relating to the mobility allowance scheme and the motorised transport grant. The issue of the Who Cares? report remains unresolved. It is shocking that people have had the right since 1970 to be provided with long-stay care, yet that right has been systematically denied by successive Governments and the Department of Health for decades. When this was brought to their attention, they tried to kill it through a legal strategy to prevent cases ever reaching the courts and, according to the Ombudsman, when they are pushed to it, by making individual settlements and demanding as a condition of settlement that claimants be gagged and never speak about what happened. That is Stalinist. The comparison with eastern Europe is not inappropriate in this context. If the committee has any role to play, it is precisely to provide the opportunity for people who have been mistreated by the State in this way to have their voices expressed and for us to hold the State and the Government to account.

Deputy Noel Harrington has said there are limits to what the committee can do and that may the case in the context of its formal powers, but the issue is what we should decide to do. Perhaps it is not up to the Ombudsman to comment on this. If issues are brought out into the open, the people responsible are brought before the committee and an opportunity is given to those affected by these injustices to speak out whereby we provide a focus for them, we can begin to move them along. We have witnessed how this has been done by other groups in society, including recently by disability groups. Some officials might have hoped they would go gently into the night with certain things being done to them. If we provide that focus, we could get justice on this issue. If the State cannot afford to uphold the law or people's rights, officials should say this and it should be debated openly, with the Dáil being enabled to make a decision on what it thinks. There should not be an attempt to hide this and pretend the problem does not arise, as appears to have happened in this case. I do not know what the Ombudsman thinks we can do, but, at a minimum, the Minister and top officials in the Department of Health should appear before the committee. I fail to see why we should not invite former Ministers for Health who were around when all of this was going on. This was going on for decades and they should be held to account on these matters also.

Again, it may be difficult for the Ombudsman to say what she thinks about this question, but I wonder about the apparent divergence of opinion between the HSE on the specifics of the mobility allowance scheme and the motorised transport grant and its willingness to implement them and the Minister or the Department that states we cannot afford it and, therefore, they will not implement them. What is happening? Who is winning out in that scenario? Is the HSE making the decision on how the eligibility criteria are applied or are the Minister and the Department winning out to flout and disregard the law? Does the HSE have the upper hand in the delivery of the scheme?

Michelle Mulherin (Mayo, Fine Gael)
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I welcome the Ombudsman and her colleague. She has described her great frustration in dealing with the Department of Health and outlined a litany of previous problems with the Department, some of which have resulted in additional costs to the State because they were not dealt with in a timely manner. She performs a helpful role in that the ordinary citizen can bring a problem such as this to her office without having to have recourse to the courts. The expense in these cases is prohibitive and uncertain for individuals who believe they have been put upon enough. Any report to which the Ombudsman gives time and on which he or she deliberates should be given the gravest consideration by the Department involved.

I am concerned, as is the Ombudsman, about the level of engagement by the relevant Department when she presents such a report in teasing out the issues raised. Has she received an acknowledgement from the Department of Health that it is in breach of the Equal Status Acts? Is it stating what she is saying, that it acknowledges it is in breach but there are cost issues? However, that does not hold water. How much engagement has there been between her office and the Department? Have officials formally acknowledged that they have breached the Equal Status Acts or are they disputing this to justify their position?

It is very much welcome that the Minister, if necessary, and the relevant officials will come before the committee in the interests of natural justice. We are talking about the rule of law and natural justice also applies. This is an oversight committee, which means we should observe the rules and exercise our power and right to ask piercing questions to resolve this issue because I would like to see a resolution. It should never have had to come before us because of a breakdown in communication, which makes it sound simplistic. It may be a cultural issue, as the Ombudsman mentioned, and this needs to be tackled, but we need to get to the bottom of the matter and arrive at a solution in respect of her position as a watchdog.

Charlie McConalogue (Donegal North East, Fianna Fail)
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I join colleagues in welcoming the Ombudsman and Mr. Butler. It is shocking that the HSE and the Department of Health which are responsible for administering, implementing and overseeing laws would break the law and not adhere to it in their own actions. The Ombudsman has highlighted the vulnerable position in which this leaves many of those affected as a result.

In the absence of court action, they find it difficult to get a resolution. It emphasises the importance of the Office of the Ombudsman as a recourse for them. The fact that a recommendation from the Ombudsman can be disregarded after it has been pointed out that the law has been broken shows a real weakness in the system. Mr. Butler said the fact that the mobility allowance scheme and the motorised transport grant do not have statutory underpinnings creates real difficulties in terms of how appeals can be dealt with without taking a court case or seeking a judicial review. We must learn the lesson and ensure there is a proper structure and statutory underpinning for all schemes so that this does not happen again. I agree with my committee colleagues that we must ensure the Minister and his officials come before the joint committee to get to the bottom of the issue. The Office of the Ombudsman pointed out the importance of organisational culture and it is critical that the joint committee address that issue. That is an important role for the committee.

The Ombudsman has come before us to outline her findings in these two cases. What level of engagement existed in the past between the Ombudsman and the Oireachtas? Did she present her reports to committees, as we are doing today, and engage in discussion on them? I know she must lay her reports before the Oireachtas.

Ms Emily O'Reilly:

I will respond first to Deputy Boyd Barrett. The critical role is accountability. My office is a form of accountability. There is an accountability circle which is completed by the work of the Joint Committee on Public Service Oversight and Petitions. In 99.9% of cases, accountability is secured though my office. Public bodies make recommendations and when they are not implemented I come to the Oireachtas. Assuming the committee accepts my analysis and recommendations, I assume it would complete the accountability circle by doing whatever needs to be done - for example, calling people before it and seeking reports.

On the issue of illegal nursing home charges and the fact that settlements are now being offered, we have tried on many occasions, going back many years, to see the legal advice under which the Department of Health is operating, but the Department has always refused to give it to us. The officials say they are sure they do not have a liability to people who were effectively forced into expensive private nursing home care. We take a different view. Ultimately the courts will decide. It has not got to that stage because settlements are being entered into. Again, we tried to get information on the settlements and the basis on which they were made. We got very little information on that either. They say it is entirely legitimate for the settlements to be confidential; however, we take a different view, as this is not a matter of private litigation. This is expenditure of public money on settlements we cannot know about as individuals. It also discriminates between one set of individuals who have the capacity, the know-how, the money and the courage to go to court to seek redress and those who may be on their own and do not know how to do it. We believe that is not an acceptable way to act.

Deputy Mulherin queried whether the Department accepts that it has breached the Equal Status Act. I do not think there is any doubt that it does, and we can give the Deputy the entire correspondence if she wants that. Much of it is contained in our reports. In regard to the mobility allowance, the Department accepted completely that the upper age limit of 65 was wrong. Several years ago the motorised transport grant issue went before the Equality Tribunal and the Department had got rid of the age cap before a ruling was made. There is no issue in that regard. The HSE and the Department of Health made payments in one case on the issue of the upper age limit, which is an acceptance that no age limit applies.

My colleague Mr. Butler can clarify how many motorised transport grant cases the HSE is dealing with, and he can tell us whether it is confined to County Donegal.

Mr. Fintan Butler:

One of the recommendations from the Ombudsman was that the HSE in Donegal review all cases decided since 2009 in which people had been refused on the basis of a narrow understanding of what constituted severe disability. The HSE is conducting that review on the basis that it will apply a broader understanding of what constitutes severe disability. I do not know the exact number of cases but I imagine it is 30 or 40 or that kind of number. It is certainly more than nine or ten cases. The fact that it is doing the review in light of the Ombudsman's recommendation about taking a broader understanding of disability does appear to be in conflict with the position being adopted by the Department. The scheme is a departmental scheme, so the HSE is in a bind in that it can really only do what the Department says it should do, yet it has agreed to do something that the Department states it will not do. There is a certain level of confusion.

Ms Emily O'Reilly:

The level of engagement was a major issue for the Office of the Ombudsman. The creation of this committee was a major benefit. Previously, our engagement with the Oireachtas was ad hoc and sporadic. We would be invited to appear before a committee after an annual or an investigative report had been published, but then a few years could go by without any engagement whatsoever. The engagement with this committee is very important.

Peadar Tóibín (Meath West, Sinn Fein)
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It is fair to say at this stage that the committee will use the full extent of the power it has to ensure there is full compliance with the law. We will ensure that citizen's rights are vindicated. We propose to invite the Minister, the Secretary General and the HSE to come before the committee. We will ask the legal team of the Houses of the Oireachtas to brief us on the situation.

Trevor Ó Clochartaigh (Sinn Fein)
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With all due respect, a Chathaoirligh, I believe the issue is more fundamental. What is at issue is whether Departments respect the role of the Office of the Ombudsman and the rule of law. There are obvious issues relating to the specific cases that have been taken. We are calling in the HSE, departmental officials and the Minister to deal with those specific cases. From what we have heard from the Ombudsman and from An Coimisinéir Teanga, however, there is a broader issue. The culture in Departments is that they seem to think that they can chose à la carte and enforce whatever rulings they like from the Ombudsman. That is a fundamental issue on which we need to focus.

Susan O'Keeffe (Labour)
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My recommendation is precisely the same. We are asking the Minister to deal with the illegality of the approach rather than the specific detail of the report entitled Who Cares? An Investigation into the Right to Nursing Home Care in Ireland. This in fact should be raised on a different day. I would hate to try to deal with both of these issues at the same time because we will not get through the business. We would not be able to talk to the Minister about the illegality of the application of the motorised transport scheme, the departmental culture that the Ombudsman has outlined and the report at the same time. I recommend that we separate the issues out and have two separate conversations with the Minister. Otherwise one will get lost in the other.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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I am not sure I quite agree with that, although I would like some guidance from the Ombudsman on it. The report is about a culture that appears to be present in the Department of Health over many years. A series of things have happened which indicate a particular culture in the Department of Health. I would not agree with what Senator Ó Clochartaigh said about other Departments.

That may or may not be true. It would involve having to widen the camera way too much. Perhaps other Departments will come into focus in this regard when we receive other petitions. We may encounter cultural problems there as well. We should bring in representatives of the Department of Health to respond to the case that has been stated in this report, which is that there appears to have been a cultural problem in the Department over decades. We have three instances of this, one of which is very current and another of which is pretty current. Are the issues at the centre of the Who Cares report not still pretty current?

Peadar Tóibín (Meath West, Sinn Fein)
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I would like to comment briefly. Two reports - the Too Old to be Equal report and the motorised transport grant report - have been referred directly to this committee. I suggest that the two reports give us a basis to review the dealings of the Department and the HSE in each case. The two reports give us a door to open up our work to deal with the cultural aspects of the HSE. We can leave open the option of seeking to investigate the other elements of it further. I put it to Senator Ó Clochartaigh that we are virtually on the same page here. It is just a matter of intent.

Trevor Ó Clochartaigh (Sinn Fein)
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It is important to clarify to Deputy Boyd Barrett that we have received substantial evidence from An Coimisinéir Teanga. We spoke to officials from four organisations, including the Department of Social Protection, on the same day. We heard a great deal of evidence about similar cases in which An Coimisinéir Teanga, who is an ombudsman, had made a ruling. The Department of Social Protection decided not to comply with the ruling in this instance. It said it had received a direction from the Department of Public Expenditure and Reform to the effect that a working practice which had existed for 37 years should be followed. It is the same issue. An Coimisinéir Teanga made it clear that his ruling with regard to the law of the land should stand. Regardless of the Department involved in this case, the issue that needs to be considered at a higher level - as a State and as a Legislature - is whether all Departments agree that an ombudsman's ruling, which is made following a thorough investigation, should be adhered to. That is really fundamental.

Susan O'Keeffe (Labour)
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The clarity needs to come from this committee. When we make our request to the Minister, we should make it clear that the issue of illegality should not be obfuscated with the details of the motorised transport scheme. That is my fear, however. We could talk all day about the motorised transport scheme without getting to the issue we need to raise with the Minister. According to the Ombudsman's report, the law is optional for the Minister. That, not the details of the motorised transport scheme, is surely what we want to discuss with the Minister.

Michelle Mulherin (Mayo, Fine Gael)
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We are responsible for the oversight of petitions. We have to deal with each of them case by case. Some of the things that arise from them will be obvious. I do not wish to detract from what Senator Ó Clochartaigh has said. If we start throwing a broad net and generally giving out about the Department of Health's culture and all the rest, we will lose the power of our findings and our ability to ask questions about things based on particular cases brought before us. We are entitled to make a fair comment on these things arising from what has been said here, but we should focus on the reports that are before us.

Peadar Tóibín (Meath West, Sinn Fein)
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I wanted this meeting to happen before Christmas. I am cognisant that if it is too broad, it will not be possible to deal with some of these issues before Christmas. It has been suggested that we should bring in the Minister, the Secretary General, the HSE and the legal team of the Houses of the Oireachtas before Christmas to discuss this case, as outlined by Senator O'Keeffe. I think we should take that opportunity to analyse in the presence of the legal team the responsibility of all the Departments with regard to this matter. We can also look at other individual Departments after Christmas. I agree fully with what the Senator is saying. We have been in operation for a short period of time. We already have a long list of situations that have occurred, not all of them in this specific Department. I believe we have an opportunity to do that. Is that agreed? Agreed.

Ba mhaith liom míle buíochas a ghabháil leo siúd a thug an cur i láthair cruinn dúinn inniu. It was very interesting. We commend the work that has been done. We look forward to communicating with those involved the next time we meet. Go raibh míle maith agaibh. I remind members that we will need to be as flexible as possible with regard to dates in order to facilitate those we have asked to come in. Obviously, we will have to try to line up all of those individuals.