Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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Today we will have a discussion with officials from the Department of Health about the mobility allowance and motorised transport grants. I remind everybody to turn off their mobile telephones as they interfere with the sound system.

We are pleased to welcome from the Department of Health: Mr. Jim Breslin, Secretary General; Ms Frances Spillane, assistant secretary; and Ms Grainne Duffy, principal officer. They are here today to update the committee on progress on the mobility allowance and the motorised transport grant. Members will be aware that these issues were initially brought to the committee through special reports under section 4 of the Ombudsman Act 1980 by the then Ombudsman, Ms Emily O'Reilly. The committee held a number of meetings on both topics, which culminated in the cessation of any new applications for the mobility allowance. The current recipients continue to receive their allowance, although applications for new allowances have been closed since 26 February 2013. On 2 July 2014, Dr. Ambrose McLoughlin, former Secretary General of the Department of Health, met with this committee and advised that the Department was working on the drafting of a new scheme. Mr. Breslin is here today to apprise members on the latest developments in regard to the mobility allowance and the motorised transport grant.

I welcome our guests and thank them for forwarding their presentation, which has been circulated to the members. Before commencing, I must inform you that by virtue of section 17(2)(l) of the Defamation Act 2009, you are protected by absolute privilege in respect of the evidence you give to this committee. However, if you are directed by the Chairman to cease giving evidence on a particular matter and you continue to so do, you are entitled thereafter only to a qualified privilege in respect of your evidence. You are directed that only evidence connected with the subject matter of these proceedings is to be given and you are asked to respect the parliamentary practice to the effect that, where possible, you should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.

I invite Mr. Breslin to make his presentation. This will be followed by a question and answer session with the members.

Mr. Jim Breslin:

This is my first appearance before the Joint Committee on Public Service Oversight and Petitions, and I am happy to be invited by the committee. I am aware of the committee's continuing interest in the issues which have arisen with the mobility allowance.

I hope to update the committee on the progress under way in developing new legislative proposals. The committee is very familiar with the circumstances around the closure of the mobility allowance and the motorised transport grant schemes. By way of reminder, I will only provide a short synopsis to put today's discussions in context. I will then speak about developments under way, after which I will be very happy to answer questions.

The mobility allowance was established in 1979 as an administrative scheme by way of departmental circular. The mobility allowance was payable by the HSE and previously by the health boards, subject to a means test, to persons with a severe disability who were between 16 and 65 years old and unable to walk or use public transport. The monthly full rate of mobility allowance was €280.50. At the time the scheme was closed, there were 4,700 recipients, at an annual cost of €9.3 million. Since the closure of the scheme, the Government has directed that the HSE should continue to pay an equivalent monthly payment to these 4,700 individuals pending the establishment of a new transport support scheme.

The motorised transport grant was established in 1968 and was also an administrative scheme. It operated as a means-tested grant to assist a person with a severe disability with the purchase or adaptation of a car, where that car was essential to retain employment. The maximum grant was €5,020, payable once to an individual in any three-year period. In recent years, more than 300 people received the grant each year, at an estimated cost of €1.3 million per annum. As the committee is aware and as the Chairman has just said, the Government decided to close the motorised transport grant scheme in February 2013 and no further grants have been payable since that date. However, it is important to note that the disabled drivers and disabled passengers scheme, operated by the Revenue Commissioners, remains in place. This scheme provides VRT and VAT relief, exemption from road tax and a fuel grant to drivers and passengers with a disability who qualify under the relevant criteria set out in the governing regulations made by the Minister for Finance.

In 2012, the then Ombudsman recommended that the Department of Health revise both schemes to make them compliant with the Equal Status Act by removing the upper age limit and using a broader definition of disability in respect of eligibility for both schemes. These recommendations raised significant issues of a legal, financial and practical nature, particularly as regards extending eligibility to a significantly wider cohort. With continuing pressure on public expenditure, including the health budget, the Government came to the conclusion that such an extension of either scheme would have implications for the protection of front-line health services and would be unsustainable. A review group on transport support for people with disabilities and, subsequently, an interdepartmental group were established, with the interdepartmental group chaired by the Department of the Taoiseach. On foot of the interdepartmental group's work, the Government decided that the detailed preparatory work required for a new transport support scheme and associated statutory provisions should be progressed by the Minister for Health in consultation with other relevant Ministers. In making the decision to establish a new scheme, the Government's focus has been on those in most need who have least resources available to them.

In line with the Government decision, the Department of Health has been working to develop policy proposals for a new transport support scheme. These proposals seek to ensure that there is a firm statutory basis to the scheme's operation, addressing one of the critical findings against the existing schemes, which were purely administrative. There is a transparency and equity in the eligibility criteria attaching to the scheme, resources are targeted at those with greatest needs, the scheme is capable of being costed and it is affordable on its introduction and on an ongoing basis.

Following detailed policy analysis, the Minister of State, Deputy Kathleen Lynch, provided policy guidance to officials which has allowed for the drafting of a general scheme and heads of Bill for the new transport support scheme. This general scheme and heads of Bill has now been completed in draft form and it is currently subject to detailed legal examination. This is a very important stage, given the complex legal issues which have arisen in the operation of previous arrangements. The proposals will also be the subject of consultation with other relevant Departments, in particular the Department of Social Protection, which was previously identified as having a potential role in the issue of payments under a new scheme. In finalising proposals, it will also be necessary to estimate both the numbers likely to qualify for the payment and the likely overall cost, as well as securing the necessary funding in the event that additional costs arise.

The clear instruction from the Government is that eligibility criteria for the transport support scheme must focus on those with the greatest need and who have least resources available to them. The position as articulated in the Ombudsman's reports about the inequitable nature of the abolished schemes remains valid and must be addressed under any new arrangements.

However, to make the eligibility criteria for the scheme very broad, opening up newer categories of eligibility, the effects of which are difficult to estimate, would carry major budgetary implications. Competing demands within the disability budget and elsewhere must be considered - for example, issues such as therapies for children, day services for young adults leaving school and the need to improve other supports for people with a disability. Therefore, the focus in the Department has been very much on the identification of appropriate criteria which will benefit those facing the greatest challenges while taking account of the group that has continued to receive the payment and which, it must be acknowledged, has come to rely on that payment.

These considerations continue to be at the centre of the Department's efforts to find a solution which is fair, financially affordable and legally sound. The real needs in this area are recognised. If one takes the case of an individual who uses a large customised wheelchair which cannot be accommodated on public transport and if that individual is not in a position to easily transfer to a standard seat in a car, it is acknowledged there is a real issue of cost attaching to that person's transport. In addition, if this individual is in receipt of a low income, such costs could restrict his or her access to transport and participation in important activities.

An added issue to be addressed is the treatment of the 4,700 people currently in receipt of payment under the previous mobility scheme. As mentioned, payments continue to be made to this group on an interim basis in order to prevent hardship and allow time to deal with the complex issues which have arisen through no fault of recipients. This is important in alleviating stress, anxiety and uncertainty among a vulnerable group in society. Whatever criteria are settled on for the new scheme, we will also seek to address the needs of current recipients. Again, this adds complexity to the definition of eligibility criteria from a legal and drafting perspective, but the proposal to be put to Government will seek to take account of this group.

The proposals will also provide for a transparent and objective appeals process which will deal fairly and sensitively with applicants. In the coming weeks, we plan to submit the draft general scheme to the Government, once the legal examination and consultation with other relevant Departments are complete. It will be a matter for Government to determine the precise policy which will underpin the general scheme to be published. I cannot pre-empt the outcome of these considerations. The approval of a general scheme and heads of Bill by the Government will be followed by publication and pre-legislative scrutiny by the Joint Committee on Health and Children.

While I am limited in regard to how precise I can be on the nature of the final proposals in advance of their determination by Government, I assure members of the priority attaching to this issue. Delivering on the objective of finalising appropriate and equitable criteria for the new scheme while taking account of the group that continues to receive payment has been demanding. It has been subject to considerable input across Government. I believe the current year has seen considerable progress achieved in the Department in developing detailed and concrete proposals which will now be subject to wider scrutiny.

I would also like to reassure the committee that the Department has stayed in touch with the Ombudsman, Mr. Peter Tyndall, on this matter and I envisage updating him shortly on developments. The review group and interdepartmental group were also assisted to a considerable extent by the National Disability Authority, which I have been assured remains available to assist as and when required.

In summary, the Department is working to develop a solution which will meet the aim of contributing towards the cost of the transport and mobility needs of those in greatest need and those with the least resources, within whatever funding level is available. There is an unusual degree of complexity attaching to the issues. I fully acknowledge the protracted period since the problems with the mobility scheme were first highlighted and I fully acknowledge the period since the committee first raised the issue with the Department. However, I believe significant progress has now been achieved. I look forward to completion of this work shortly. This will allow the Minister to bring proposals to Government in the coming weeks and for the process of Oireachtas scrutiny to commence. Thank you.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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Before I allow members to comment, I wish to say that the Ombudsman will appear before the committee next week and we will ask him for his views on this matter and on Mr. Breslin's presentation.

I know my colleagues share the view that this issue has been dragging on for a crazy amount of time. I am deeply alarmed that it is over a year since we met the previous Secretary General in private session. The briefing we have received today is not hugely different from the briefing we received then - a year further on - on the issue of the rights of people with disabilities across the State. Recently, I heard the phrase "a circular filing cabinet" in regard to governance.

Something goes in and it comes round and round again but does not get addressed. I ask for an explanation. For people watching today and for people with disabilities, who have a profound concern about this issue and who have been before our committee and given evidence, how can we justify a period of more than a year, with essentially the same assurances that this is being prioritised? In his presentation today, Mr. Breslin assures us that this is being given priority. How can we genuinely say that? More than one year on, we still have not drafted a scheme, in consultation with disability representative groups, that deals with the issues raised by the Ombudsman. Those are my questions.

Mr. Jim Breslin:

I acknowledge, and I did so in my opening statement, the delay in this matter. This is something we would have hoped to complete sooner. It has been one of the more complex policy undertakings the Department has had to engage with in recent times.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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Could I get everyone's full attention?

Mr. Jim Breslin:

Substantive progress has been made during the period between this appearance and my predecessor's appearance. We have completed a set of policy options in that interim period. We have outlined them and we have engaged with the Minister of State to try to refine them. We have now turned them into a draft general scheme and heads of Bill. That was the work that was ahead of the process when the former Secretary General last appeared. We are now at the stage where we have completed that as a Department and we are engaged with the relevant legal experts and other Departments. We hope to complete that process and go to Government in the coming weeks. I would have preferred to be here saying we have published the general scheme and that it is before the Oireachtas, but I believe and am committed to achieving that in the coming weeks, which would be a substantive achievement at that stage.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I thank Mr. Breslin and open the floor to the members. I call Deputy Ó Snodaigh.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I listened to the contributions and I remember being here when we heard from the Ombudsman in 2013 and the Minister thereafter when the scheme was suspended. As I remember it at the time, we were told that it would take a number of months, possibly until June 2013, to have a replacement scheme in operation. Given the complexity of the issue, I presume the time has been usefully spent, but to date we do not have any product by which we can measure that. I hope it will happen very soon. However, I understand that it will then have to go through the process already outlined. Heads of a Bill will be presented to Cabinet and then published. This committee will then go through the new pre-legislative stage. I dealt with another piece of quite complex legislation, the Gender Recognition Bill, which was substantially changed after that process. I would not say it was delayed, because I think it was a better Bill afterwards, but the process took nearly two years, if not more, from gestation. That is my concern. Even with the publication of the heads of a Bill, we could be two years away from a scheme being put in place to address the needs of those who previously would have got the two grants.

Has an exceptional needs payment been set aside in the meantime? There has been a saving to the Department since 2013 because the scheme was suspended for new applicants and I presume some people have died. There would, therefore, have been a saving for the Department of Health. Is that money ring-fenced? There are people who are in dire need. Is there some mechanism whereby they could apply for some of that money? My prediction is that this may take another two years, which would be a total of nearly five years of having to do without for those who previously got the motorised transport grant or the mobility grant.

Has there been any thought given - it might be in the new Bill - to moving these grants away from the Department of Health to the Department of Social Protection? It has been delivering similar grants which involve medical assessments. Would that be an appropriate mechanism? Would it make any difference in the future? The Department of Health has a limited or inadequate budget, as we know, while the Department of Social Protection has a budget which, of late, it does not fully spend. It usually sends the money back to the Exchequer. As the Department of Social Protection makes savings in the future, it might ring-fence funds to put towards this type of cost.

Have the officials any indication, after two and a half years of looking at this, of how many people would be applying? I see that part of the next phase will be trying to estimate how many people would be able to apply for or benefit from the new scheme. I presume after this length of time, there should be some guesstimate as to how much this is going to cost. Without being tied to a figure, we will have to be allowed some type of yardstick with which to measure it when the heads of the Bill are published.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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There are a number of questions there.

Mr. Jim Breslin:

On the work that has been undertaken, it may be worth opening up a general discussion. There is particular complexity in this work. If one had a greenfield site, one would set out some new criteria and identify the people who might qualify. In some ways, that is the easiest part of the legislative process. We have inherited an administrative scheme which was not operated on a firm legislative basis and which, in reality, had some inconsistencies in it. Under that scheme, 4,700 people qualified. We believe we are going to seek to come forward with something that can legally provide for those 4,700. That is the complexity of combining a new scheme with ensuring we keep the 4,700 people in payment. That is the particular challenge we have been confronting and we think we have made progress.

This goes to the point the Deputy has made about the interim period. In the interim period, the money for those 4,700 people has continued to be paid in recognition of their reliance on the payment. They have had that payment over many years, and to simply remove it when we closed the scheme would have been inappropriate and could have caused distress. They continue to get that payment. Any numbers falling out of the scheme have been very marginal in the interim period. That money continues to be ring-fenced and will be available for the solution we come up with in the general scheme.

The Deputy asked how many people could apply. It is difficult to envisage a number lower than 4,700 because if there are people in categories which might not in the future be eligible, but we want to keep them all within the scheme, then everybody new is going to be additional to the 4,700. It will be an increment of the 4,700. Essentially, it comes down to how broadly we throw the net open in devising the criteria for who should qualify. I am happy to talk about that in further detail as it is the real meat of teasing through the general scheme.

On the Department of Social Protection, there has been debate across the Government on that question. The backdrop is that the then health boards had minded a number of schemes that were not particularly health specific.

These schemes migrated to the Department of Social Protection. They were income support schemes for particular categories. They covered persons in receipt of domiciliary care allowance, the disabled person's maintenance allowance and income supports. The Department of Social Protection has certainly taken over a number of these. There would have been a debate on whether this scheme would be relevant in that regard. It is important that we finish the work we have taken on rather than trying to pass it across. It involves completing a legislative basis for a new scheme. When that work is done, it will be fair enough if somebody at Oireachtas or Government level questions who should administer the scheme, but I do not want to be distracted from trying to finish this part of the process by having to determine whether there is somebody else who should take it on. We have the ball and should get this over the line as quickly as we can.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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I do not have much to add as the main points have been made. I can understand the complexity of what Mr. Breslin is trying to do. However, the delay is unacceptable and has gone on for too long. Obviously, the suspicion is that the issue is just being fudged so as not to have to deal with it this side of a general election because it could be controversial. That is the suspicion one might have, given the incredibly slow movement on this issue.

We identified a long time ago the complex conundrum which we discussed here at length. It seems quite amazing that although the process has gone for so long, we still do not actually see anything we can assess. All I really wish to ask for - I know Mr. Breslin cannot answer because this is political - is assurance that what I describe is not what is taking place. Perhaps he might elaborate on the process and the interaction between the Department, people doing this work and the Government. I do not know what he can say about it, but can he tell us the date on which we will see the result of all this labour?

Mr. Jim Breslin:

As the Deputy implied, I am not a politician. We are approaching this task on the basis that it needs to be completed independently of any other event and that we need to submit the work to the Government, once completed. The timeline is that we will complete the process of seeking legal advice and engage in some consultations, principally with the Department of Social Protection, and then make a submission to the Government. We intend to do this in a matter of weeks, not months or years, subject to getting through the legal advice process.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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Will we know when it has gone to the Government?

Mr. Jim Breslin:

I am happy to keep the committee up to date and to advise it. I hope we will not only go to the Government but also put a workable proposition to it that would allow us to publish. I am happy to revert to the committee in a number of weeks to outline the position. I will have no difficulty in doing so.

On interaction with the Government, we have been working under the policy direction of the Minister of State, Deputy Kathleen Lynch, and keeping the Minister, Deputy Leo Varadkar, informed of developments. This has been across the Government's table on a number of occasions. It has set up an interdepartmental committee and so on. The next opportunity it will have for engagement on the matter will be when we circulate our proposals, which will happen shortly.

Mary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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I thank Mr. Breslin. I understand this is complex. He has mentioned that there are inconsistencies regarding what is in place. I would not mind hearing about some of them. He also spoke about budgetary implications and said there would be competing demands within the disability budget. Does he envisage that the cost will be much greater than what is currently available or does he envisage it falling within the same budget?

Are the budgetary implications informing what he is doing?

Mr. Jim Breslin:

The Ombudsman has pointed to inconsistencies, given that certain categories of disease or disability were considered to fall within the scheme. Quoting the Equal Status Act, she considered that it had fallen foul of that Act. Therefore, in its actual rule set there were inconsistencies. There were also inconsistencies in its application, but that is almost inevitable when one leaves the decision-making process to a decentralised old health board system and even within the HSE, where at a local level decisions are made on a case by case basis and there is no national policy in terms of process and procedure. In the introduction of any new scheme we would seek to put in place, both at a clinical and a means-testing level, one national process that would apply consistently to all people in order that we could guarantee equal treatment across the country. That would be one of the things we would seek to do.

Mary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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Are budgetary implications informing decisions on the persons to whom the scheme will apply?

Mr. Jim Breslin:

The original references to the budgetary implications had their genesis, if one rolls it back, in what the Ombudsman had found. There were two particular findings. One was that there was an arbitrary age limit such that if one was over 65 years, one could not apply. It was said that was not consistent with the Equal Status Act, as it was purely arbitrary. Obviously, if one removes a limit, a scheme is likely to apply to more people, if one does not do anything else with it.

The other aspect was that there was criticism that it was confined to particular disabilities. The scheme was principally focused on physical disabilities. I do not want to raise unreal scenarios, but I will illustrate a more exaggerated one. If one was to drop the age limit completely and say a person with any disability or condition could apply, that would be a very wide scheme which would have obvious and real budgetary implications. The task is to look at it afresh and ask who are the people in greatest need and try to come up with new criteria, as opposed to fixing the old scheme. That is what we have been engaged in.

Mary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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What is happening to those who cannot apply and may be stuck at home and unable to travel?

Mr. Jim Breslin:

Those not included in the 4,700?

Mary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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Yes.

Mr. Jim Breslin:

They do not have access to a scheme. They might have access to other transport arrangements, or they might have access to other income payments through the social protection system.

Mary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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But they might not either.

Mr. Jim Breslin:

They might not.

Mary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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That is the reason we really do need to get this going.

Mr. Jim Breslin:

I agree absolutely. The only thing which remains, as I mentioned, is the tax relief scheme operated by the Revenue Commissioners which continues to apply. I am told the cost of that scheme was €48.5 million last year. There is relief from VRT, VAT and so on if one is operating a car but not everyone can operate a car.

Mary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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Yes. It is really important, therefore, that this committee follow up the matter.

Mr. Jim Breslin:

Absolutely.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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Before letting Deputy Aengus Ó Snodaigh to ask a final supplementary question, I have one final question. As part of the process, has Mr. Breslin considered amending equality legislation in such a way that it would permit him to introduce targeted measures? Obviously, this is an administrative scheme; has he, therefore, looked at it in that context? As that was legislation he was seen to have contravened, has the process included examining it? Schemes will be examined for the young, the elderly and those with disabilities. The legislation will permit him to do this on the basis that those in a particularly vulnerable group require a particular focus with this pocket of money. Has this aspect been looked at?

Mr. Jim Breslin:

There was a particular problem with the Equal Status Acts because the scheme was not on a legislative basis; it was an administrative scheme.

If we provide legislation then it would stand on its own legislative basis but, importantly, that legislation has to have an objective basis to it. If it was purely arbitrary again, it might not be an issue for the Equal Status Act but there might be constitutional or other reasons. We do have the option of providing for a category of persons to avail of this scheme and for others not to avail of it but it would have to be based on objective grounds. Some of the work that we have been doing is trying to tease through what could be the objective grounds for that. Our thinking at the moment is that it would be invidious to distinguish between different disabilities that are in or out. Such an approach would lack objectivity. It would certainly bring one back into that space of equality.

In terms of providing objective grounds that are legally sound, one of the areas we are looking at is functional impairment or functional requirements. That is where a lot of work has taken place. To give an example, which I provided in the statement, if a person is using a very large wheelchair, he or she is unlikely to be able to use public transport which most of us are able to use. He or she is unlikely even to be able to use public transport that somebody in an ordinary wheelchair would be able to use, certainly someone in an ordinary wheelchair who has an ability to manoeuvre himself or herself. Even with a personal assistant, carer or family friend accompanying them, such a person would probably not be able to use public transport or local transport solutions in those situations. Because of their functional requirement in that situation, they face a barrier that other people do not face and so what we must try to come up with examples or criteria such as that, that can be objectively stood up and that can be stood over when the Bill comes before the Oireachtas. That is the work we are trying to achieve.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Some of what I will say arises from the answers to date. I would find it invidious if one were to draw up a list. The problem is that the Department of Health has a list for medical cards, for instance and the Department of Social Protection has a list for the domiciliary care allowance and other schemes. It is not something that should be done but there are procedures in place.

It was only an inquiry about future administration. I do not want the Department to hand it over to somebody else to start all over again. I suggest that the transfer of such a function would be considered in legislation but that is a policy decision.

The Department has probably looked at this, but there have been cases where, for instance, the Department of Social Protection has ended one scheme and let it run for the existing cohort while a new scheme has been introduced for new claimants. I presume the Department is considering something similar to that approach.

In some ways my final question has been answered. It is not likely that any budget line for a scheme will be contained in this year’s budget if the Department is talking about only getting to Cabinet in the coming weeks with the heads of a Bill. A budget line for a scheme would be unlikely on 13 or 14 October or whenever the budget is this year. It appears that we are at least a year away from the full conclusion of a scheme given that the Bill would have to pass through the Houses and then statutory instruments or commencement orders would have to come after that. Is it safe to say that it will be at least a year before we see a new scheme in place and in operation?

Mr. Jim Breslin:

On the last point, ultimately it is a matter for the Estimates and for the Government but I am conscious of the points made by all members. Deputy Mitchell O’Connor said there are people who might have applied for the old scheme, and if they were applying now they might have benefited from it but cannot do so. If we are successful in getting all the way to primary legislation and getting a Bill through the House, we would not want to be in a situation where we could not commence the legislation because we had not made any provision so we will ring-fence the existing resources and we may need to consider making some provision, albeit it not a full year provision for 2016.

It will be a matter for the Oireachtas to take charge of the legislation once it arrives over here and it will be timetabled as laid down. We might have a contingency in place that if it was to progress we would not delay its implementation. That is something we will look at.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I thank our guests for coming here today. We appreciate their contribution and we will be in contact with them soon for an update. We will now suspend while we get ready to introduce our next guests. We will suspend and resume in public session.