Oireachtas Joint and Select Committees
Tuesday, 15 November 2022
Select Committee on Children and Youth Affairs
Mother and Baby Institutions Payment Scheme Bill 2022: Committee Stage
I move amendment No. 1:
In page 5, between lines 24 and 25, to insert the following:
“Report on operation of Scheme 2. (1) The Minister shall cause a report on the operation of the Scheme to be commenced on the day that is six months after the establishment day and to be laid before both Houses of the Oireachtas as soon as practicable after its completion.
(2) A report under this section shall consider the following matters:(a) whether and to what extent persons engaged in the management, administration or operation of relevant institutions should be permitted or required to contribute to the cost of making payments under this Act;
(b) whether the 180 days residence requirement provided for insection 13(1)and (4)should be amended or repealed;
(c) whether the Scheme should be extended so as to make provision for recognising persons who were boarded out as children as relevant persons;
(d) whether there is a need to provide for additional institutions in Schedule 1;
(e) whether the requirement imposed on applicants by section 27(3) should be removed;
(f) whether the duration of the Scheme should be extended;
(g) whether payment rates under the Scheme should be increased.”.
Those are all self-explanatory. I am not sure what the Minister's position is; we will hear from him shortly. We feel certain issues are not contained within the legislative proposal before us. I have been told that the amendment is in order. One of the limited tools we in opposition have is to seek reports on the issues that are pertinent to the many people who feel left out and feel that they should be included in the Bill. The amendment would at least allow for a report on those issues affecting those people who see themselves as being excluded by the Bill.
I wish to put on the record our frustration and disappointment that it was only during lunchtime that we got an email from the committee secretariat advising us that the majority of the amendments that Deputies Funchion and Ward and I had submitted had been ruled out of order because they have financial implications under Standing Order 212. In effect, that means the substantive changes that were discussed at the committee during pre-legislative scrutiny and on Second Stage will never be examined.
The amendments ruled out of order may now only be discussed in the context of Deputy Sherlock's amendment seeking a report. They include: ensuring that the approximately 5,000 people who were boarded out would have been included in the scheme; adding people who were part of the illegal medical trials to the scheme; removing the arbitrary and discriminatory exclusion of people who spent less than six months in these homes as children; giving recognition for the systematic racism; and the removal of the requirement for survivors to sign a legal waiver.
For the people watching and for those the Bill impacts, it is important that we note that Standing Orders have done an incredible disservice to survivors and to the Irish people today. In reality, the Minister would have disregarded most or all of those amendments but at least they would have been discussed and these survivors would have heard their words and the points they raised in the OAK report being at least considered.
Committee Stage is supposed to be a chance to properly interrogate ideas and formally and non-formally influence legislation. The only thing we can do now is to ask the Minister to include a report to look at those things. Alternatively, we could ask him to look at the amendments that were ruled out of order and potentially introduce them himself. We have discussed this legislation during Private Members' business and so on. I had wondered how the Minister would during Committee and Report Stages defend something like preventing children who spent less than six months in institutions from getting redress. Now we will not be able to discuss it. I am not saying that is down to him; that is the Standing Order.
In the interest of everybody watching it would be good to explain why people who spent less than six months in institutions cannot get redress. People do not want to hear that the Minister thinks the birth information and tracing legislation is sufficient redress for those people because we know it is not. It is a shame that we cannot discuss it through the amendments we had tabled. People would like a proper explanation.
I thank Deputy Sherlock for tabling the amendment because otherwise we would not have been able to discuss many of the amendments we had hoped to discuss. I also want to speak to amendments Nos. 24 and 25, which are in this grouping and were tabled by Deputy Ward and me. My position has been on the record for months, if not years, since we started discussing this. Often when we talk about this subject people will rightly say it is not possible to place a price on the human rights abuses and everything else people went through. That is 100% correct. It is very difficult to know how we can even start to address the wrongs that were done to people, particularly some people who are still looking for children who were taken from them. Some 50 years later one person is still looking for her son. I cannot understand how we have not been able to find some avenue or mechanism to help her to find that person who is now an adult in their 50s. That always comes to my mind whenever we are discussing this situation.
One thing I know for sure is that we should not start by excluding anybody.
It is very wrong to exclude people on the basis that they did not spend six months in the homes. That is crazy. Someone who was in a home for five months could be excluded while someone who was in one for seven is included. It beggars belief. I cannot get my head around how you could start by excluding anybody. That is a really serious flaw in this legislation and I will argue for it to be changed until the Bill is passed. Many other people agree with me. It is really wrong because it also creates division among survivors. Obviously, some of the people involved are elderly and have significant issues or difficulties. They really want to be able to access this money but they feel torn because they know that many people are going to be left out. That is one major issue.
I am glad that we have Deputy Sherlock's amendment in order that we can at least discuss this issue. I hope the amendment will be accepted. It calls for a report six months after establishment. There is no harm in accepting an amendment to say that we should look at this. In its proposed section 2(2)(a), it raises the issue of other institutions and the question of "whether and to what extent persons engaged in the management, administration or operation of relevant institutions should be permitted or required to contribute to the cost of making payments". That is another issue. The matter of certain religious institutions and pharmaceutical companies not paying their fair share bothers all of us, including the Minister. That is what I want to say with regard to amendment No. 1, which we totally support. It covers everything we wanted to say in other amendments that were ruled out of order.
I will now speak to amendment Nos. 24 and 25 because they are also in this grouping. Amendment No. 24 is an amendment to section 42 and reads:
In page 31, to delete line 16 and substitute the following: “(a) as soon as possible after the second anniversary of the establishment day, but not exceeding six months, and”.
This amendment and amendment No. 25 are linked and seek to ensure a review of the payment scheme between two years and two years and six months after establishment. This will allow for the documentation of any issues with either the management or administration of the payment scheme and for them to be identified and remedied within the lifetime of the scheme.
Amendment No. 25 is a kind of follow-on. Obviously, the language changes as legislation is amended. It is the same. It calls for the review to be undertaken "as soon as possible after the cessation date, not exceeding six months." The crux of everything I want to say today while we are discussing this is that I fundamentally disagree with excluding any survivor from the mother and baby institutions. The scheme should also cover all of the institutions, not just those examined by the commission of investigation, and all of the children who were boarded out. I will also again mention the pharmaceutical companies and religious institutions, which we can mention thanks to Deputy Sherlock's amendment No. 1.
Amendment No. 1 seeks to include a section in the Bill providing for a report on the operation of the scheme. I am not in a position to accept that part of amendment No. 1 because section 42 already provides for a review of the operation of the scheme. The intention of section 42 is for two reviews to be conducted on the scheme. One is an interim review to be commenced two years after the establishment day while the other is to be commenced after the completion of the scheme. Section 42 sets out a list of matters that should be considered as part of these reviews and allows for the Minister to specify any additional matter. Section 12 provides that the chief deciding officer shall prepare an annual report on the performance of his or her function and that each annual report will be laid before the Houses of the Oireachtas.
On the timing of the reviews, the commencement of a review within six months after the establishment of the schemes, as is proposed in amendment No. 1, is not proportionate. It does not give the scheme enough time in operation to flesh out the issues and concerns that may arise. Six months is just not enough time. However, I find the proposals in amendments Nos. 24 and 25 to be reasonable in proposing that the reviews should be commenced no later than six months after the second anniversary of the scheme and the cessation date respectively. I will give consideration to the text of these amendments with a view to potentially proposing amendments to the same effect on Report Stage.
Moving back to amendment No. 1, I agree with the amendment that a report on the review should be prepared. That makes sense. It was never the intention that there would just be a review and that nothing written would be produced but that there would be a physical report on any review taking place under section 42. The Deputy is probably right that we need to be more explicit and to specify that there will be a written report. We will look at that and seek to propose something in that regard on Report Stage. We will also look at specifying that such a report would be laid before the Houses of the Oireachtas. We can come back with some language in that regard on Report Stage.
The development of proposals for this scheme has obviously been a complex task. With regard to the list of matters set out for consideration as part of the report proposed in amendment No. 1, it is important that the reviews of the scheme be anchored in the scope of the scheme as set out in the legislation underpinning it. I am keen to reassure Deputies that the review conducted will include a strong focus on the applicants' experience of engaging with the scheme. This intention is already underpinned by section 42(2)(c) where it is set out that reviews under the section shall consider the applicants' experience of the application, assessment and review processes under the scheme. In response to the Deputy's proposed subject matters, I would also like to explore the possibility of including a specific reference in section 42 to capture applicants' views on the effectiveness of the public information campaign that will be undertaken to make people aware that the scheme has launched and of the deadline for applications. Again, I will come back with proposed amendments on that point on Report Stage.
We need to delve further into what the Minister is saying as to what he will return with on Report Stage. The question is now whether I withdraw or press my amendment. I am of a mind to press it. Before I do, however, I will signal my intention to propose another such amendment on Report Stage. I will say that for the record. We will wait and see what the Minister has to offer on Report Stage.
On the issue of the 180 days, the reason for our amendment is that we feel strongly that the issues of temporary absence and the 180 days under section 13 are hanging like the sword of Damocles. There needs to be some reporting mechanism to speak for those people. I ask that the Minister come back on Report Stage with some language in that regard because what the Minister is proposing in section 13 seems too strident or prescriptive. It refers to a person who "was resident in a relevant institution for not less than 180 days, shall be entitled to a general payment in respect of the number of days, referred to in column 2of Schedule 2at any reference number, during which the person was so resident". What we are trying to do is to speak for those people who left, came back again and left again. They do not seem to be encompassed by what the Minister has brought before us. As my colleagues, Deputies Funchion and Cairns, stated, more than 60% of children are not deemed to be eligible for redress and not covered by this legislation. We have to find some way to address that. I feel that my questions during the Second Stage debate as to the modelling or cost permutations the Department has considered with regard to the exclusion of the category of people who spent less than six months in a home have still not been definitively answered. The justification for not including those people has not been provided. I do not think those people can be excluded. Whatever the reporting mechanism looks like, it has to include those people as well because they have a voice.
That is the bottom line.
Apologies, but it appears there is a vote in the Chamber. We will suspend because we will all have to go for a vote. Can the Deputy can get it in within the two or three minutes before we are all due down there?
I welcome the Minister’s comments on amendments Nos. 24 and 25 and I agree with much of what Deputy Sherlock said.
At the risk of sounding like a broken record, I do not see how you can exclude people. No matter what happens with this scheme and even if there are reviews and there are some positive changes, if you are excluding anybody, you are already on the back foot, starting from a wrong place, creating division and creating even more frustration and distrust with a group of people who have been let down their whole entire lives by this State. I strongly advocate for amendment No. 1 to be accepted in order that we can at least have that review and perhaps look at inclusion. I feel strongly that we should not be excluding anybody from the payment scheme.
I was speaking about the need for a review after six months. The Minister said he thinks that is too soon because there would not be time to flesh it out and to see how the legislation is working. The point I think we are all trying to make is that we do not need six months to know that the legislation is unsuitable and outrageous in that it excludes, for example, people who spent less than six months in an institution. Our opportunity to debate amendments such as this one is not available to us because the amendments have been ruled out of order, so our only hope that these changes might be made at this point is that a review is done as soon as possible. Any later is not good enough. The point the Minister is trying to make, I think, is that we do not need time to know that this legislation is okay. Experts in human rights, his own Department's report, the Oak report, survivors themselves and psychologists who are experts in early years have all said that the legislation is not suitable. Six months is too long, as far as we are concerned. I hope the Minister will reconsider and accept this amendment.
In respect of the request that we review subsections 13(1) and 13(2) and the timeline set out there, I have made the point - I know that Deputies may not agree with it and that is obviously legitimate - that this scheme and the institutional payment scheme are one part of the State's response to what happened in these institutions. We have the 22 actions set out in the action plan. They encompass a range of responses, recognising that the priorities of survivors are multifaceted. Deputy Funchion spoke with great passion about an issue in respect of the need to find a family relative. Those issues are what we are seeking to address with the information and tracing legislation. We are seeking to address people's huge need to understand their own identities and to make provision and an allowance for the possibility of families being united through a statutory tracing service, which we have introduced. We are bringing forward the institutional burials legislation in response initially to the situation in Tuam. We are providing for commemoration, education, a children's fund and a range of health supports. There is the enhanced medical card provided for in this legislation. We are also looking at patient advocacy liaison, linking The Irish Longitudinal Study on Ageing, TILDA, the health study of former residents of mother and baby and county home institutions, in order to understand the long-term health implications. This element is therefore one part of that overall response to those who were resident in mother and baby and county home institutions as either children or adults.
As for some of the specific points that have been made, in respect of overall costings, I inform Deputy Sherlock that the annex to the interdepartmental group report published last November sets out detailed costings of various constraints. I am sorry - I do not have them off pat. In respect of the costings for the scheme we are bringing forward today, it is one of the schemes that is costed in respect of that annex, so that is probably the best place to look. Deputy Sherlock made the point about former residents having been in and out of institutions, and I take that point. That was one of the changes we made between the heads and this legislation. Absences of up to 180 days will not disqualify somebody from making a claim. The reason for that is that we know there were people who, because of what happened in the institutions, the ill health they suffered, the poor conditions or the poor treatment, spent large amounts of time not in the home but in hospital, often returning to the home, and it would be illogical to double-punish them for having spent time out of the institution and then to deny them access to the scheme. Therefore, physical absences from the institution of up to 180 days can be discounted. That is significant and, particularly for people who may be on the cusp of various elements of eligibility, will be of assistance.
Ultimately, in respect of the proposal and the review, we need to review the scheme as it has been introduced, how it has functioned and how it has delivered for those for whom it was designed. That is the ambit of the review as set out at the moment.
I appreciate the point the Minister makes about the 180 days. I may have misinterpreted that initially so I take that point. Speaking to the amendment, however, the question is merely whether the 180 days' residence requirement provided for should be amended or repealed. First, I hold to the view that a report into that is still a reasonable ask. Second is the question as to whether the requirement imposed on applicants by section 27(3) should be removed. The logic of where I am coming from here is that if somebody was resident in a relevant institution for up to and including 89 days, the general payment is €5,000. That is according to Schedule 3. The total amount, therefore, is €5,000. The Minister's subsection (3) states that if one receives a payment of €5,000, one "shall not [and I stress "shall not"] institute civil proceedings, and shall discontinue any other proceedings instituted by or on behalf of the applicant". My worry about that is that there is the compensation, which in these instances is small, but there is also the issue of the seeking of justice, whereby a person will seek to have recourse to the courts. I just wonder what the legal basis of signing a waiver will be to that end. By dint of this legislation, I cannot help but feel that the Minister is restricting people from being able to seek recourse to the courts in seeking to have justice applied to themselves, which is a fundamental right that people have. Is the Minister taking that right away from them if they sign this waiver stating they have received their €5,000 and can no longer institute or take any further proceedings? I am not a lawyer. I would defer to legal experts on this one. Is the Minister entitled to do that? Obviously, he feels he is because, otherwise, he would not legislate for it, but what is the legal strength of such a waiver? How is it to be written? Is it a contract? Is it a pro formaform that will be handled by an administrator within the Department? How does the Minister envisage that this would be dealt with?
Finally, and I thank you for your latitude, Chair, that is why I sought to have a report into how this will operate. If a hundred people come forward, for the sake of argument, at €5,000 per person, some of those people may feel that they would like recourse to the courts on this and that, while they have signed a waiver, they still have a right to go to the courts. I do not think we should disbar those people from going to the courts. That is where I am coming from.
This is our only opportunity to discuss these aspects of the redress scheme. The Minister has just said again that this is not the only part of a response to survivors and that there is the birth information and tracing legislation etc. Realistically, however, he knows, I know and everybody watching this meeting knows that that is not redress. Birth information and tracing legislation is allowing people to access information they should have been able to access all along. It is not a redress scheme; it is separate legislation for a reason - because it is not redress.
Will the Minister please outline why people who spent less than six months in an institution are excluded, without referring to other legislation that we all know is not redress?
I do not agree with the Deputy. The range of measures we are putting forward in the action plan constitute redress. The measures we are talking about in this legislation constitute a financial payment in terms of redress. However, with regard to accessing information and seeking to deal with the fundamental issues survivors have identified over the years, that is redress. It represents part of the State making up for the multifaceted failures that have been demonstrated by-----
The sort of schemes that relied on evidence being brought forward have been replaced. The stolen generation scheme in Australia originally used an evidence-based approach but moved to a time-based approach, talking about a common experience. We believe a time-based approach is the right way to go to recognise the impact on individuals of time spent in these institutions. That is the basis of the approach we are taking.
With regard to Deputy Sherlock's question on the waiver, it is worth stating that the waiver only applies in respect of a payment. It does not apply to the medical card. It is only signed at the point of the offer of the financial payment. The applicant under the scheme knows the amount that he or she is being offered and is in a position to make a judgment on whether the offer is something he or she can accept in signing a waiver. Recognising that is a significant decision, we provide for legal advice, the cost of which is met under the scheme. Everyone signing a waiver has the capacity to access legal advice. With regard to the questions asked about their desire to access justice, that is, justice through the civil courts and civil proceedings, up until that point, a survivor has the right to pursue a case through the courts.
We have taken a different approach to previous schemes in that there is no restriction on speaking about the award, its size or what it is made from. That is an improvement in this scheme. It is a common feature of ex gratiaschemes such as this to ask those who receive a reward to sign a waiver relating to other legal cases. That is a recognition of the simplification of this process vis-á-visa court process where one has all the risk of proving one's case to the balance of probability standard in a civil case, whereas in these situations where an applicant's residency is proved for a certain period, the payment is made. It is on the basis of that much more simplified process where an applicant has a far better chance of receiving a payment than under a case taken in the civil courts that the waiver is a kind of quid pro quofor that element of the process.
I move amendment No. 8:
In page 9, to delete lines 19 to 21 and substitute the following: “(5) The Chief Operating Officer may appoint suitably qualified staff as he or she may determine to the staff of the Office of the Chief Deciding Officer to assist in the performance of his or her duties.”.
The amendment seeks to ensure that suitably qualified professionals assist the chief deciding officer. The very least survivors deserve and the public expect is that the staff running this scheme would be qualified in trauma awareness and human rights. It has the additional benefit of addressing concerns of survivors who are sceptical of the scheme following their engagements of lack thereof with the Department. The appointment of someone with suitable credentials would be a sign of good faith, not to mention responsible use of public money. Unfortunately, a similar amendment seeking that the chief deciding officer would be similarly qualified has been ruled out of order. I can see no good reason to oppose this amendment. Unfortunately, it already looks clear the administration of the Birth Information and Tracing Act and the Institutional Burials Act are problematic with survivors treated poorly and not communicated or engaged with only in bureaucratic terms. As well as needing to address those issues, we need to learn from them and ensure that the scheme is run with survivors in mind from the start.
Is amendment No. 8 grouped with amendment No. 9?
With regard to amendment No. 9, we know that many of those entitled to redress no longer reside in the State. It is, therefore, essential that any public information campaign has an international element. The OAK report makes special reference in several places to survivors living abroad, in some cases due to their experience in mother and baby homes or being boarded out. It should also be noted that the general scheme referred to public advertisement in Ireland and abroad but the requirement for an international element of the campaign was removed in the Bill. It seems like a change in position and the amendment guarantees there will be in an international information campaign.
Amendment No. 20 provides clarity on the chief deciding officer's obligations around the storing of personal information. Survivors will be required to share highly personal and emotionally-laden information in many cases. There is an abundant moral requirement for them to have clarity on how this information will be used, stored or potentially destroyed, etc.
With regard to amendment No. 26, the addition of other institutions to Schedule 1 could have a significant impact on many survivors. It is important the Bill enables institutions to be added as easily as possible to facilitate survivors accessing redress. This comes under the principle of timely access to compensation and removal of time-based barriers as outlined by the UN Human Rights Committee and survivors. Under the Bill currently, the Minister would need the consent of the Minister of Public Expenditure and Reform to add any institutions. Besides the implicit chilling effect that will have on any proposals, it also a complex process prone to interdepartmental delays and discussion. Instead, amendment No. 26 proposes that the chief deciding officer and Minister are best placed to add institutions to Schedule 1. This is a simple and more efficient process that keeps decisions as close to those impacted as possible.
Amendment No. 8 relates to staff being independent but also properly qualified. When dealing with any sort of officialdom, a person's experience is often based on the person he or she meets or engages with. He or she remembers often remembers that person, sometimes for good reasons and other times for negative reasons. It is very important that anyone who is engaged in this is trained in trauma and everything around that.
I refer to the independence aspect. As the amendment states, "The Chief Operating Officer may appoint suitably qualified staff" and determine the needs of the office in "the performance of his or her duties.” I refer to there being the leeway to do that. This is important. We should be learning from other schemes and experiences. We have often heard that people had negative experiences in the past when they were trying to access records. It is important, therefore, that we learn from that, move on from those experiences and ensure it does not happen again.
Concerning amendment No. 9, the general scheme made provisions for the advertisement of the payment scheme here and abroad. No specific statement is made, however, that the information campaign will be advertised overseas. It is important that we ensure every effort is made through public advertisement here and abroad to ensure that people who were residents of an institution are made aware of this scheme. We all engage with survivors regularly and many people linked to and dealing with groups are well aware of everything going on. There are some people, though, who might not be aware of this information, particularly those living abroad and who may never have spoken about their experiences. Every effort should be made, where possible, in this regard.
Amendments Nos. 20 and 26 are also in this grouping. Amendment No. 20 is to "specify the length of time said information will be stored, confirmation if at the end of this period said information will be destroyed and by what means". This is important. It provides another layer of transparency for the office of the chief deciding officer, his or her staff, and, in particular, survivors, if information is to be kept after a decision has been made or after an appeals process, for example, in respect of it being clearly stated what will happen to all personal information at the end of that process. This is an extremely important aspect for survivors. We have had many discussions in this regard, and not just in the context of the mother and baby institutions, but, generally, concerning any of the institutional school survivors, records and access to records is always an issue. It has been a contentious issue at times over the years. It is important, therefore, that we are very clear about how information will be stored and what will happen to it. Such a clear statement will be good not just for survivors but important as well for those working in those roles.
Amendment No. 26 refers to "The Chief Deciding Officer, in consultation with the Minister may, by regulation, provide for the insertion in Schedule 1of any institution which was established for the purpose of providing maternity and infant care services and the placement of children for the purposes of adoption or care arrangements, and in respect of which a public body had a regulatory or inspection function". This amendment is to ensure that the decision to add an institution in Schedule 1 rests with the Minister and chief deciding officer in consultation, and that it would not be subject to the consent of the Minister for Public Expenditure and Reform. In this amendment, we are trying to avoid a situation where this becomes a money issue and ensure that it is addressed by a Minister who has been dealing with this matter, which at the moment is the Minister present, as well as the Department of Children, Equality, Disability, Integration and Youth. We think this is the appropriate Minister to deal with this issue, in consultation with the chief deciding officer.
I will speak to amendments Nos. 8, 9, 20 and 26 together. This Bill provides for the establishment of an office of the chief deciding officer of the mother and baby institution payment scheme within my Department. The office will be overseen by a chief deciding officer who will perform the functions set out in section 9. Importantly, this section states that the chief deciding officer will "be independent in the performance of the functions independent in the performance of [these] functions" and that chief deciding officer will be assigned staff to support the administration of the scheme. On this point, I indicate that I may bring a technical amendment to this Bill on Report Stage to provide clarity concerning how staff will be assigned to support the chief deciding officer.
The approach, as outlined in the legislation, has clear benefits in respect of allowing the office of the chief deciding officer to draw on my Department's existing infrastructure and resources. This will support a speedier establishment of the scheme. The chief deciding officer will be accountable to the Secretary General of the Department in respect of his or her role as the Accounting Officer for the Department. If this approach were not provided for, a separate body or agency would have to be established to administer the scheme after the enactment of this legislation and this would delay the roll-out of the scheme.
To further confirm the fundamental element of independence, I draw attention to the fact that applicants have recourse to an independent appeals process by virtue of sections 23 and 24. Additionally, under section 25 a further appeal on the point of law can be made to the High Court. Again, on Report Stage, I am considering bringing a technical amendment to clarify the effect of appeals lodged in accordance with section 25.
The scheme, as we know, is intended to be non-adversarial in nature. It will not require applicants to bring forward evidence of abuse suffered. The staff involved in administering the schemes, especially staff who will have a public-facing role in respect of the lodging of applications, will be trained in trauma-informed approaches and sensitive communications and all the processes will be trauma-informed. This aspect will be provided for. I do not necessarily feel that it needs to be enumerated within the Bill. Provision is made in this regard and this work has already started in respect of the work we are doing to lay the groundwork for the scheme.
Turning to amendment No. 9 relating to the stated function of the chief deciding officer and the public information campaign, it has always been the intention, and, indeed, it will be necessary, that this campaign promotes awareness of the scheme in Ireland and abroad. I appreciate that the Deputy is drawing attention to the fact that "abroad" was not explicitly referenced in this legislation, so I am happy to commit to considering this further and, potentially, bringing back an amendment on Report Stage to confirm that it will be abroad. In the same way as our information and tracing scheme has been domestic and abroad, this scheme will need to be abroad as well.
Moving on to amendment No. 20, I accept in principle the importance of being specific concerning the management of information accrued through the administration of the scheme. This matter has been fully considered by my Department, since it developed the administrative and operational arrangements for the scheme. It will be dealt with comprehensively in the context of the requirements under section 46. In this regard, however, I also signal my intention on Report Stage to consider an amendment to the Bill providing for how the office of the chief deciding officer will be formally dissolved and for any residual functions of that office to be transferred to the Minister for Children, Equality, Disability, Integration and Youth.
Regarding amendment No. 26, I am not in a position to support this amendment. It would be entirely inappropriate to delegate the function of regulating for the listing of additional institutions primarily to the chief deciding officer. Any such expansion of the coverage of the scheme would be a legislative matter. It would be a policy matter for the responsible Minister to consider. There would also be a cost implication, and this will, by necessity, also require the consent of the Minister for Public Expenditure and Reform.
I refer to having some regard to the role that public representatives, Deputies, Senators and others, will have in advocating on behalf of the people they represent who will interface with this new office. What is being created here seems similar to the Department of Social Protection, and it is normal practice for us to interface with that Department and the HSE on regular payments being paid out by the State. This is particularly the case regarding the Department of Social Protection. I hope the role of Deputies, Senators and others would be recognised and that we would not be hampered by the general data protection regulation, GDPR, if permissions and consents are given to us to advocate on behalf of our constituents. I refer to us being recognised as public representatives to some degree in interfacing with such a body. I say this because not everybody will be able to make their own case in this context.
I take this point on board. I do not think it necessarily requires a statutory basis. As the Deputy said, many State agencies have routes, such as dedicated email addresses, for Oireachtas members to ensure there are clear channels of communication. It is important because the Deputy stated not everybody can advocate for themselves. I go back to what we see as being the simplicity of this scheme; if people were in these institutions for the specified time, then they will get the payment. There will be situations where people will probably want to make a point.
That is fine but, by and large, there are no value judgments being made and there is no need to establish evidence. It is just a question of whether someone qualified for the period and whether the records suggest that the person was in for that period. As we all know, though, there will be people who seek the support of their representatives, so we will make that point. I hope that a mechanism to recognise this will be built in from the beginning.
I am stretching this, so I beg the Acting Chair's indulgence. I ask that the Minister show some caution. There was a time when we could approach Irish Water with representations and those would go into a central repository, where they would be handled by a third party and so on. There are issues around that. I will be so bold as to make a suggestion. I take the Minister's point that it should not necessarily be put on a statutory basis, but there has to be recognition of the role of the public representative. People need to have advocates on their behalf, and that is largely a role that we all have as public representatives. I would not like to see the organisation writing back to the person who is making the representation on the basis of the length of time he or she spent in an institution saying that the organisation will not speak to Deputy Sherlock on the matter and he has nothing to do with it. The system and culture of the organisation must be ones of interfacing with the public and must recognise us as public representatives acting on behalf of people. This is where I am coming from - I should have been clearer about it.
I wish to flag that I intend to table an amendment to section 13(6) on Report Stage to take account of technical discussions between my officials and officials from the Department of Education. This subsection refers to the double recovery rule and the inclusion of one institution - St. Patrick's, Navan Road, Pelletstown - in that. We are looking to make a change.
I move amendment No. 17:
In page 14, to delete lines 19 to 22.
This amendment relates to the six-month residency requirement. I am half surprised that it was not ruled out of order on the basis of costs, given that it addresses the same issue that we have been discussing. We do not support the inclusion of any provision that restricts applications from relevant persons who were residents for less than six months. The crux of the argument that we have been making on this legislation all along is that no one should be excluded.
There may be a need for clarification. Section 15(4)(b) is a positive provision and removing it would negatively impact on the Bill. As such, I am opposing the amendment.
Section 15 provides for an applicant to make a further application to the scheme where another institution in which he or she resided is added to the list of institutions covered by the scheme in Schedule 1. There is a provision for potentially adding new institutions under section 43, which we discussed when debating the previous amendment. In order to streamline the process, only one application should be made to the scheme in all other circumstances, but if a new institution is added, an individual is entitled to make a second application.
Where a further application is made under section 15, the intention provided for under this section is to afford the most generous calculation possible in assessing the applicant's eligibility for payments and access to health services under the scheme. Therefore, where it benefits the applicant to do so, section 15(4)(b) allows for his or her previous application to the scheme to be decided alongside his or her new application so that the total number of days he or she spent in the combined institutions will be reckonable in terms of affording an enhanced medical card or a payment to the applicant where he or she had previously not satisfied the eligibility criteria.
I will provide an example of what we are trying to achieve. A mother spent four months in St. Patrick's, thereby qualifying for a payment but not an enhanced medical card. A private nursing home where she spent three months is subsequently added to the Schedule. If treated as a separate application, she would get a payment in respect of the three months, but she would still not qualify for the enhanced medical card. If we applied the rules on aggregation - these are the rules that section 15(4)(b) applies and that this amendment is seeking to remove - that would apply if the private nursing home had been in the original Schedule, then she would be able to qualify for both the payment and the enhanced medical card. That is what this provision is seeking to do. It is a good provision. Perhaps Deputies would like to examine the matter again. They might wish to resubmit the amendment on Report Stage, but it would be a negative move to remove this provision.
We will take a look at it again, but a thought occurs to me in respect of payments that accrue to persons who are deemed eligible for a payment. Has there been a discussion with the Department of Social Protection on how these payments are dealt with when assessing means for other payments under that Department's rules?
I move amendment No. 18:
In page 15, line 17, to delete “, as soon as practicable,” and substitute “, within 28 days,”.
This amendment seeks to ensure that applications are processed in a timely manner. The current wording is too ambiguous and allows too much scope. Given that survivors have had to wait decades for justice, it is important to ensure that this time limit is added. The administration of the Birth Information and Tracing Act 2022 is highlighting that applications under it are often taking longer than the timelines outlined. Given the exceptional range permitted, it is important to learn from that experience and add this time limit. It should also be noted that the reference to 28 days in total means four weeks, not 28 working days.
Amendment No. 19 relates to the previous amendments on the role of the timely processing of applications. Given the age profile of survivors, it is important that the applications of those aged over 75 years are assessed quickly. No one could disagree with this point. It is especially significant in the context of the Government's refusal to grant the interim payments requested by survivors.
The OAK report states that the most commonly held view in relation to financial recognition was that an immediate, interim, ex gratiacommon experience payment should be paid urgently. The least the Government should do after repeatedly ignoring this point is ensure the timely processing of applications.
In relation to amendment No. 18, the wording "as soon as practicable" gives too much discretion to the chief deciding officer. There is no reason a decision cannot be reached within the time limit of 28 days, as specified in section 16(1)(a), and an additional 28 days, as specified in our amendment.
Amendment No. 19 states "shall, when the applicant has reached the age of 75 years or older, prioritise the applicant and process within 15 days". We know many survivors have passed away since the Taoiseach's apology on 13 January 2021 and many are elderly. Given the resources rightly being appointed to the office of the chief deciding officer and the general scheme, we believe those who have reached the age of 75 should be prioritised and the turnaround time of an application must be no more than 28 days initially for acknowledgement, and a further 15 days to process and notify the decision of the chief deciding officer. People at various times, including some Deputies, have asked if there was any way to give interim payments on the basis of people's age. This would help prioritise elderly people.
Amendment No. 23 is a technical language amendment. It states: "In page 25, line 23, to delete "as soon as is practicable" and substitute "within 28 days"." It is a follow-on if the other amendments were to be passed.
I am not in a position to accept amendments Nos. 18 and 19 because the 28 days they specify for a claim to be processed in could become immediately unrealistic and unmanageable, recognising this is one of the largest schemes in the State, with 34,000 potential applicants. We will do everything we can to process applications as quickly as possible but we have to acknowledge the scale of the scheme and the number of potential applicants.
Everything is being done in my Department to make sure we have a comprehensive administrative infrastructure to operate the scheme and that it opens as soon as possible after the legislation is passed. The scheme will have to deal with tens of thousands of pages of records. To say we can do it at all times within 28 days, particularly at the start of the scheme, is not realistic. We are committed to moving as quickly as possible, so we can look to examining timeframes and providing for them in regulations, but they would have to be lengthier than 28 days. That is not a realistic timeframe within which to commit to delivering for all people.
In terms of amendment No. 19, it is important to say there is already a provision for prioritisation. Section 16(3)(b) allows the Chief Medical Officer to prioritise on the basis of age or state of health of the applicant. Somebody could be under the age of 75 that is set out in the amendment but be in a perilous state of health. The flexibility provided for the chief deciding officer in 16(3)(b) is more appropriate so I do not propose to accept amendment No. 19.
On amendment No. 23, I will ask my officials to engage in work further to that they are already undertaking with respect to the technical requirements of individuals providing their PPSN to the chief deciding officer in order, where relevant, to receive the enhanced medical card. Once this work has been completed, I may bring a technical amendment on Report Stage to provide any necessary clarity required around the use of PPSNs for the scheme.
I may bring a technical amendment on Report Stage to provide clarity on the data processing the HSE will engage in by virtue of the fact it will be providing a service to qualifying applicants under section 29(3). I may also bring minor amendments to sections 31 and 34 on Report Stage to provide further clarity on, respectively, the circumstances under which an application may be made on behalf of a relevant person and the deemed withdrawal of an application in circumstances where an applicant ceases to engage thereon.
The Minister mentioned the Chief Medical Officer. Will it be standard for every applicant that it automatically goes to the Chief Medical Officer or does somebody have to appeal where they feel they should be prioritised? Can we get more detail on how that will be rolled out? It is a good point that is not just about age but could also be on medical grounds.
It is in section 16, under the heading "Examination of application: general". Maybe I misspoke. It is the chief deciding officer who makes the determination. Section 16(3) states:
(3) The Chief Deciding Officer— (a) shall, subject to paragraph (b), complete his or her examination of an application and make his or her determination, as soon as practicable, and
(b) may accord priority to the examination of an application where he or she considers that it is in the interest of fairness and efficiency to do so, having regard in particular to the personal circumstances, including the age and state of health, of the applicant.
I seek further clarification concerning the chief deciding officer. We are talking about an enhanced medical card. There are physiological elements to that. Are psychological elements taken into account? I am trying to get the Minister on the record saying they are, so that if issues arise down the line, we can refer back to committee debates. These are thoughts that are occurring to me as are seeking to legislate here in situ. I am trying to think of the person who presents with trauma or psychological issues where there are psychiatric or psychological reports. Forgive me if I am misinterpreting the circumstances in which the enhanced medical card will be granted.
That is it. There was talk of the general data protection regulation, GDPR, and personal data, but none of that needs to be provided for access to the enhanced medical card or to a payment. We are not having a proof of abuse or proof of impact scheme. The scheme considers time spent in the institution.
I move amendment No. 19:
In page 15, between lines 21 and 22, to insert the following: “(c) shall, when the applicant has reached the age of 75 years or older, prioritise the applicant and process within 15 days.”.
I withdraw the amendment with a view potentially to bringing it back on Report Stage on the basis of that medical information.
I move amendment No. 20:
In page 16, between lines 15 and 16, to insert the following: “(c) specify the length of time said information will be stored, confirmation if at the end of this period said information will be destroyed and by what means,”.
I move amendment No 24:
In page 31, to delete line 16 and substitute the following: “(a) as soon as possible after the second anniversary of the establishment day, but not exceeding six months, and”.
I will withdraw amendment No. 24 but intend to resubmit it on Report Stage.
I move amendment No. 25:
In page 31, to delete line 17 and substitute the following: “(b) as soon as possible after the cessation date, not exceeding six months.”.
I will similarly withdraw amendment No. 25 and potentially resubmit it on Report Stage.
I move amendment No. 26:
In page 31, to delete lines 36 and 37, and in page 32, to delete lines 1 to 3, and substitute the following: “43.(1) The Chief Deciding Officer, in consultation with the Minister may, by regulation, provide for the insertion in Schedule 1of any institution which was established for the purpose of providing maternity and infant care services and the placement of children for the purposes of adoption or care arrangements, and in respect of which a public body had a regulatory or inspection function.”.