Breeda Moynihan-Cronin (Kerry South, Labour)

I welcome the opportunity to contribute to the debate on this long awaited Bill. I agree with Deputy Finneran's comments about the old psychiatric institutions. Both my parents worked as psychiatric nurses in such institutions in the 1940s and 1950s. When they and many others like them went to work in those places, they could not believe what they saw. Many of them came from homes where no one suffered from a disability. People with physical, psychological and other forms of disabilities were all placed in such institutions because there was no understanding as regards their conditions. I thank God that we have come a long way in the interim. In addition, the necessary medication was not available during the period in question.

I take this opportunity to acknowledge the work done by the staff of these institutions who were the first people to campaign for some sort of rights for people with disabilities. It is a shame that if social problems existed in their homes, some of those with disabilities were place in psychiatric institutions. There was no need for this to happen. The people in question became institutionalised. Unfortunately they never emerged and spent 30, 40 or 50 years in these places. The people who worked in the area when matters were extremely difficult deserve our appreciation.

There was a great deal of debate, discussion and speculation before the publication of the Bill. I welcome some aspects of the Bill, some of the contents of which are good. However, I wish to take this opportunity to outline some of my concerns in respect of it.

There has been much debate about the principle of a rights-based approach to services for people with disabilities. They key questions in this debate have been about a guarantee of services for people with disabilities, who decides on resource allocation and the mechanism to enforce rights to services and whether such rights should be justiciable. The concerns on one side of the debate are for clarity over entitlements for individuals and for adequate resources to address service deficiencies. The disability legislation consultation group argued for a rights-based approach to services, following an independent needs assessment. Acknowledging the resource issue, it stated that in the event of services not being available, a programme of measures should be put in place so that they could be realised within an established timeframe. On the other side are concerns that the courts rather than the Oireachtas might decide on resource allocation. Both the 1996 report of the constitutional review group and the Minister for Justice, Equality and Law Reform in a 2002 conference paper, set out arguments against justiciable, sociable or economic rights. The Government, after lengthy consideration of its disability strategy, has opted not to enshrine a rights-based approach, as such, into the legislation. Instead, the Disability Bill incorporates a right to an assessment of need as regards health and educational services, a right to a service statement framed to take into account resource constraints, a right to the services set out in the services statement and a right to have the accuracy of the service statement reviewed and its provisions enforced.

These proposals fall short of the rights-based approach which the consultation group sought. In a contribution intended to chart a middle course between the two sides of the rights debate, Dr. Brian Nolan of the ESRI argued in 2003 for a clear statement of what level of service provision the resources provided are intended to underpin, knowledge of the level of service provision at the individual level, statements setting out how services are to be improved over time as resources become available and transparency in resource allocation. That last point has been addressed by many people.

The first of Dr. Nolan's points is addressed at the individual level in the Bill but not explicitly at the aggregate level. I recommend that the sectoral plan should be required to spell out for the year concerned the aggregate level of service which the resources are intended to underpin. Part 2 of the Bill addresses the second point in respect of health and education services only. As regards the third point, the Bill requires that each health board set out a statement of the aggregate needs identified in this area, an indication of how long it might ideally take to provide those services and the sequence of such provision. Such statements constitute hypothetical rather than actual timetables as they are subject to whatever funds are planned to be allocated to address any service shortfalls. The actual proposal may be spelt out in due course in the promised multi-annual budgets. However, such funding should be required to be included in the sectoral plans.

As regards the fourth point, the Bill requires that the Ministers for Health and Children and Social and Family Affairs set out the criteria governing eligibility for services under the Health Act, and for social welfare payments, together with payment amounts. There is no requirement on the Minister for the Environment, Heritage and Local Government, for example, to spell out his or her sectoral plan or any criteria to be applied for disabled person's housing grants or other schemes for assistance with housing for people with disabilities. Neither is there clarity in the Bill about how liaison officers are to determine which package of services is to be provided or what criteria will be used to prioritise competing claims and finite resources. From the perspective of an individual looking for services, while the assessment of need will be clear as well as the entitlement to the service determined by the liaison officer, the process of deriving the particular service package will be muddy and essentially arbitrary.

The scope of the Bill is narrow in two key aspects. Assessments of needs and statements of service are confined to health and education areas. If someone needs access to transport for work, leisure purposes or shopping, they need extra financial help towards an increased cost of living because of the disability. These needs are not covered by the assessment and there is no corresponding entitlement to the services set out in the service statement. The definition of "public body" used is fairly narrow. It excludes State funded voluntary entitlement such as primary and secondary schools, most disability service providers, voluntary hospitals and public bodies such as area partnerships not set up by statute. Excluding these from the scope of the Bill means they are neither covered by the accessibility obligations in Part 3 of the legislation, nor the employment quota provisions in Part 5. As regards Part 3, air services are excluded from the scope of the Bill's provisions. This is an important issue for people with disabilities who need to conduct business abroad or have access to holidays abroad, and in particular for a generation of frail elderly people whose siblings or children have emigrated and who need accessible air transport to visit them. With the enormous increase in no-frills airlines, it is extremely important that the exclusion of air services is addressed. It is not beyond the bounds of possibility that the future may be difficult with regard to air travel for people with disabilities, if accessibility is not enshrined in legislation.

Part 5 gives legal backing to the principle of employment and recruitment targets for the public service. The employment quota, which has existed on a non-statutory basis for 30 years, is to be given statutory backing. There is a provision to vary it up or down from the present 3%, which remains the default option. The range of public bodies to which it will apply is very narrow. If a public body is to default for two years in a row, the National Disability Authority can ask it to take specified measures to increase the number of people with disabilities who are employed. However, there is no provision in the Bill to use public contests as a vehicle for promoting employment of people with disabilities. The setting of a quota is subject to the approval of the Minister in charge of the relevant public body. Provided the opportunity is not used to lower the 3% target in particular areas of public service, these provisions could result in it becoming a de facto target. The NDA has been given a statutory role in specifying the format of the reports from Departments and monitoring committees on the implementation of the targets. The NDA is to be given a statutory role in requesting information. Harmonising the way data are collected has been identified as important by both research reports undertaken on the 3% employment target. Public bodies which do not supply requested information or which have not been compliant with this part of the Bill for two years in a row, may be obliged to implement measures specified by the NDA, with the consent of the relevant Minister. There are no penalties or any consequence for non-compliance in implementing those measures, other than "name and shame". This contrasts with the type of penalties in operation under the Employment Equality Act, which makes it a criminal offence not to supply information which is requested. Public bodies under this Bill are required to be compliant "unless there is a good reason to the contrary for not doing so". This appears to be a lower standard than the one used in the Employment Equality Act 1998, which demands that it be reasonable in all the circumstances of the case. There is no enforcement mechanism if a public body does not comply with a directive to institute remedial measures. Does the Minister have proposals for any enforcement mechanisms or penalties in this case? There is no specific power of investigating defaulting public bodies. No penalty is specified for staff of any public body who do not comply with a request for information. The Commission on the Status of People with Disabilities had recommended a personal advocacy service as part of a disability support service and that it should be independent of service providers. The commission also recommended a network of unpaid citizen advocates. The institutional arrangements now proposed differ considerably from those originally envisaged by the commission and primarily relate to a paid professional advocacy service. The commission also recommended that an advocacy service be mandatory in residential care settings. This is not explicitly provided for in the Bill. The commission supported an ethos of self-adequacy and recommended training in this area. The Bill is silent on this issue and does not provide for any explicit attempt to ascertain the wishes of the disabled person regarding services or the pursuit of appeals by the advocacy service.

I wish to refer to some of the comments made by the National Association for the Deaf on the Disability Bill 2004. The association has been very critical of the various definitions used in the Bill. It claims the definition of disability is very narrow and might easily exclude people who are defined as disabled under the Equal Status Act 2000 and the Employment Equality Act 1998. I would welcome the Minister's comments on that. The association has also been critical of the section which deals with resources. It feels the Bill seems to state that the Minister will only provide resources when he or she is satisfied that the overall service provision to the general public will not be reduced. In other words, the Bill creates the impression that disability will only get resources if resources are permitted. I echo the welcome given by the National Association of the Deaf to section 52, which amends broadcasting legislation to provide a requirement that broadcasters take steps to promote the understanding and enjoyment of programmes transmitted by the deaf, hard of hearing and visually impaired. This involves greater access to audio-visual material by means of sign language, teletext and subtitling. I hope broadcasters live up to this requirement.

The value of the disabled person's grant to a disabled person living at home is tremendous. It can be used in the provision of a stairlift for an elderly person having difficulty using the stairs, or the provision of a bedroom and a bathroom on the ground floor for a person who cannot use the stairs. These small works which cost very little make such a difference to a person with a disability. I recently heard a case, whereby a woman approached me about the cost of heating her house. Unfortunately, her husband is severely disabled and cannot move around, so the lack of heating in the house caused great difficulty. This woman was not an elderly person or a pensioner. She was a young woman with school-going children who could not possibly afford to install a heating system in the house as her husband was not working. She cannot work as she needed to be at home to care for her husband. The heating has now been installed with the help of the disabled person's grant from the council and it makes a great difference to those people's lives. The only problem is that the grant did not cover the full cost of the heating system and this young mother had to borrow money from the credit union to make up the difference. A woman in this position should not be forced to go into debt in order to provide an essential service such as heating, especially with a disabled person in the house. I ask the Minister to give more discretion to the very able staff in the local authorities and health boards to enable them to address exceptional cases. Everyone will claim to be an exceptional case, but a young mother with no income apart from the carer's allowance and disability benefit represents an exceptional case.

There is much in this Bill to welcome, but it fails to satisfy many of the demands I have outlined. My colleague, Deputy Lynch, also outlined a number of issues that are of concern to the Labour Party. My party will be opposing the Bill, but I hope the Minister will accept the amendments we put forward on Committee Stage.

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