Olivia Mitchell (Dublin South, Fine Gael)

I mean no disrespect to the Minister of State, Deputy de Valera, but it is absolutely outrageous that the Minister for Health and Children is not present. There is nothing more important on the Tánaiste's agenda than this Bill. Despite having got it wrong once, she does not appear to care that she might get it wrong again. There is nothing more important for her to do than to attend to listen to this debate. When the Bill was before the Supreme Court, her senior counsel argued on her behalf that it would be catastrophic for the State if the charges were found retrospectively to be illegal. While it was found that the charges were illegal and that the money must be repaid, the Tánaiste has not bothered to come to the House to deal with the catastrophe. We should ask what signal her failure to attend sends to taxpayers and the people affected by the court's decision.

Despite the fact that the Tánaiste is not present, I welcome the opportunity to speak on the legislation as I did not have a chance to discuss the failed Bill which passed through the House before Christmas. It is small wonder that the Bill was struck down by the Supreme Court as we all know rushed legislation is never sound. Even if it does not constitute an outrageous attempt to legalise a practice retrospectively, rushed legislation is of no use. I do not know if the Tánaiste was motivated by naivety, poor advice or absolute desperation in attempting to legalise charges retrospectively, but her approach was doomed to failure. The Supreme Court has clarified the position and restitution must be paid.

While the matter was before the court, a rush of blood to the head prompted another poor and ill-considered decision to pay everyone affected €2,000. At this stage she must be learning, albeit, the hard way, to be very wary of advice from the Department, because good advice is based on good information. Despite worthy people in the Department and the best of intentions, the reality is that they do not have good information. They only have a very tenuous grasp of what is really happening on the ground, which is why, year after year, budgets over-run in hospitals and health boards and time bombs continue to go off in the health service yet nobody ever seems to see them coming.

I asked several parliamentary questions last week to try to elicit the exact extent of the State's liability following the Supreme Court decision. The answers were much as I expected in that they basically have not got a clue. That is the reality. No matter what they say about it being €500 million or €2 billion depending on how far back one goes, the reality is that they do not know. How could they possibly know? The information may be there somewhere, but it seems utterly irretrievable. One cannot retrieve any kind of information regarding the health service. When the Department introduced medical cards for the over-70s, it could not tell how many people over the age of 70 were alive. How could it possibly know the number who have died over the past 30 years, as well as those alive today?

The Tánaiste has promised a Supplementary Estimate later in the year to pay for this mess. The Minister of State can pass the message on to her that it may be the first Estimate to pay for this, but it will not be the last. It will be years before we know how much this will cost. Not only do we not know the numbers involved or how far back we will have to go in repaying people, we also do not know whether repayments will reflect the value of the charges at the time they were levied or the current value.

The situation is also not clear with regard to people who had medical cards or partial eligibility and could not get into public beds. Several people have raised this appalling matter. Ignoring the problem will not solve it because it will keep coming up and the Government will have to face up to it. Legally the State must repay charges paid for those in public beds. If there is one group with a genuine grievance, it is those forced into private nursing homes despite, in many cases, having medical cards and circumstances which entitled them to some form of help in terms of getting into a State-run home or a public bed in a private nursing home. These people were on low incomes, and many were pauperised and spent their entire savings paying for a nursing home. They sold their homes and once that was gone their children had to take over payments at the very time they were trying to raise their own families and had big demands on their resources. The Minister must deal with these people in a fair and open manner and reimburse them.

Reimbursement must not be made dependent on whether people can produce a written application form for a public bed, as has been suggested. The Minister, and any public representative who has had any dealings with the elderly, will be aware that the allocation of nursing beds was, at best, ad hoc, and probably in most cases absolutely chaotic. There was no formal system of application and no consistency of application, either geographically or over time. Clients in precisely the same financial circumstances in different health board areas were dealt with in a completely different manner simply because some areas had larger numbers of public beds than others. For example, I read that Donegal had a huge number of public nursing home beds relative to the population compared to a built-up area such as Dublin.

In some cases, people were moved into a public bed in order to vacate a bed in an acute hospital, where demand for beds was greater than in other hospitals and a higher turnover was needed. This was done whether people could afford it or not, and in many cases they could well afford a nursing home bed. Sometimes the situation depended on the time of the budgetary year, in that one had a better chance of getting a contract bed in January than in December when health board budgets were exhausted. There was no consistency, application forms or clarity surrounding the matter. Over the years, many people parted with far greater sums of money than the 80% of old age pensions about which we are now speaking. If they are not included in at least the same level of compensation the Tánaiste can look forward to spending much more time in the courts dealing with that problem.

There are estimates regarding the amount that is owed, but it is only the tip of the iceberg. The actual exposure of the taxpayer is completely unknown, which is why the Tánaiste should be here listening to this. Deputy O'Connor gave us a stream of consciousness which did not deal with this problem in any way. This is the biggest catastrophe for the taxpayer and the elderly in many years, and it is being made to appear as a slight little hiccup in the overall process of Government.

So far we have had no accountability. Nobody wants to sit up and say, "This is my fault." No heads have rolled and no one has acknowledged any sense of responsibility. The taxpayer will just have to pay up and shut up and that is the end of it. If a private sector company overcharged the public, we would be here jumping up and down saying the company must repay moneys. If the shareholders realised the kind of liability that had been built up, they would have given the board of management their walking papers long ago. Unfortunately, taxpayers are not in the happy position to do that but they will vent their anger eventually.

We do not yet have the Travers report regarding how this situation happened and how it was allowed to drift for so long. I was a member of the health board and, whatever happened before 2001, following the report of the Ombudsman and the introduction of the medical card for the over-70s, everybody with anything to do with the health service knew there was a problem with regard to charging. Since 2001 public representatives have been receiving queries about the legality of charges. Health board members knew this was a potential problem and it was discussed in and between health boards and the Department. It is unbelievable that the Minister did not know about it. If she did not know, then the previous Minister, Deputy Martin, was even more removed from reality than I thought at time. It was the topic of conversation. Even the previous Minister's much-vaunted reform programme was very much informed by the recognition of the growing cost of care of the elderly. The legality of charges, their lack of consistency and clarity, the subventions and their inadequacy, the failure to increase the subventions, the implications for the public purse of the medical card for the over-70s and the entitlement to nursing homes were all constant topics of discussion among everybody involved in the health services.

On top of all that came the Ombudsman's report and the subsequent debate about the distinction between entitlement and eligibility, behind which the Government is still hiding. There was then a promise in the health strategy of legislation to clarify the distinction between eligibility and entitlement which we still do not have. It was not faced up to because this problem would have come to light. It is inconceivable that the then Minister for Health and Children, in a period of intense debate surrounding the issue of the cost of care for the elderly, somehow never heard a hint that the charges for nursing homes had a questionable legal basis. Without a doubt, he had more than a hint, as had his Department. He and the Department undoubtedly reached a very comfortable accommodation with each other which was a mutually beneficial arrangement. He agreed not to rock their boat and they agreed not to rock his. I am not suggesting there was explicit collusion, but there was definitely implicit collusion. A decision was made to allow the position to drift and to go on indefinitely. It was not faced up to in 2001, 2002 and 2003, so the bill for the taxpayer increased. It suited the then Minister to have a soft landing out of the Department and perhaps the whole matter could be swept under the carpet until after a general election. If it was not for the efforts of Deputies Kenny and Perry the matter would never have come to light. In short, the Tánaiste was dropped in it because clearly she did not have her finger on the pulse of what was happening in the Department of Health and Children. The previous Minister for Health and Children, Deputy Martin, is off to Australia but I would say it is not far enough as far as the Tánaiste is concerned.

I support the notion of charges for health services, including nursing homes. It is perfectly reasonable that people should make a contribution towards nursing home accommodation costs from their pensions. It is becoming clear that everybody is now eligible for a nursing home bed and the maximum they will have to pay is 80% of their pension. I would love to think that is what will be facing me and everyone else, but that was never envisaged when medical cards were introduced for the over-70s. It was never budgeted for and it is certainly not affordable without a major change in our tax system. We are not talking about small Supplementary Estimates; it is a major change in the fiscal system, if that can be afforded. That provision is not being faced up to in this Bill.

I can tell the Minister of State — I wish the Tánaiste was here to listen — that this matter will eventually end up in the Supreme Court. Whether it intended to do so or not, the Government has created a legitimate expectation among the public that they are entitled to a nursing home bed and that all they will have to pay is 80% of their old age pension. Sooner or later that fact will have to be recognised but it has not been faced up to in the Bill. Unfortunately, that means the taxpayer will once again end up with a big bill when the matter is referred to the courts and ends up in the Supreme Court. It is a difficult nettle to grasp but it must be dealt with, otherwise it will be allowed to drift.

People can reasonably say they do not need to make provision for the future through savings as they are all entitled to a nursing home bed. The queuing system for acute hospital beds that operated in the past will not work in this case. One can only go so far in arguing about the distinction between eligibility and entitlement. The previous Minister for Health and Children promised to clarify that legislative aspect, but the clarification has not been made. It must be clarified, however, otherwise we will end up forever in the courts with a taxpayers' bill exceeding the appalling vista we already face with retrospective payments of God knows how much. At the same time, services will have to be reduced across all health programmes.

This position is truly catastrophic, as was argued in the Supreme Court, for the elderly and the taxpayer. We are still burying our heads in the sand as regards what future provision is required to accommodate the elderly in nursing homes. There is a retrospective difficulty but we are building up an even bigger one for the future.

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