Heather Humphreys (Cavan-Monaghan, Fine Gael) | Oireachtas source

Given the complex historical basis of the DPMA and the disability allowance, I welcome the opportunity to set out the context of this matter for the House.

Over the full period of some 70 years, there have been different allowances and legislative provisions governing these schemes and it is important that they be understood clearly. For more than 40 years, the DPMA constituted a weekly allowance paid by health boards to persons who were unable to work by reason of a disability. The scheme was first introduced under the Health Act 1953 and remained under the responsibility of the Minister for Health, the health boards and, subsequently, the HSE for more than 40 years. Responsibility for the allowance's payment and administration transferred to what is now the Department of Social Protection in 1996. At that point, the DPMA was discontinued and replaced by the disability allowance. The introduction and nature of the disability allowance was provided for in primary legislation at the time.

I should clarify that the legal concerns around the operation of this payment primarily relate to the period before the scheme transferred to the Department of Social Protection. Subsequent to the scheme's transfer, there were a series of improvements that led to the gradual expansion of entitlement to persons in residential care settings. For example, the Social Welfare Act 1999 provided for the retention of entitlement to the disability allowance where a person who had been living at home subsequently entered residential care. Additional, the disability allowance personal expense rate was provided for in the Social Welfare and Pensions Act 2005 and was payable at an amount of €35 per week. This payment replaced and standardised the spending allowances that had been paid by the health boards to people in residential care who were excluded from the disability allowance due to being in residential care. This move meant that all persons in residential care could apply for the payment. It represented a decisive step towards the provision, through legislation in 2007, of a full-rate disability allowance for all people in residential care settings who met the scheme's other qualifying criteria. This series of gradual improvements in entitlement was advanced across several budgets that had, of necessity, a regard for a range of competing priorities at those times.

Given the timespan over which the restrictions on payment to persons in residential care were progressively relaxed, these issues are historical. They relate to arrangements that have been superseded for many years. Furthermore, the legislative basis for the allowances and their payment changed a number of times during that timespan, adding to the matter's complexity. As a result of these complexities, and in response to public concerns, the Government asked the Attorney General to review the files in the Attorney General's office relating to charges levied for the provision of nursing home care and the non-payment of the DPMA to persons in residential care, and to provide an account of the litigation management strategy adopted by the State insofar as it was based upon the legal advices provided by previous Attorneys General and the Office of the Attorney General. My colleague, the Minister for Health, has spoken to the matters relating to the nursing homes aspect.

The Attorney General's report was received this week. The Government has noted it and it has been laid before the Houses and published. The report analyses the nature of the State's approach to civil litigation and provides an explanation of the litigation process. Around the time of the more significant expansions of entitlement in the 2006 to 2008 period, a legal challenge was made to the validity of regulations made under the Health Act 1970 in respect of the 1983 to 1996 period. The Attorney General did not consider it appropriate to name individual plaintiffs in circumstances where their litigation was compromised in a manner to their satisfaction on a confidential basis. Likewise, I do not propose to do so. I understand that the challenge sought to establish a right to the payment of the DPMA to people in residential care settings in a manner that was neither in line with the long-standing and well-understood Government policy of the time nor with the legislative intent of the Oireachtas, as expressed in the Social Welfare Act 1996. These details are set out in the report of the Attorney General. However, rather than contesting the claim, the State decided to compromise the case for reasons also set out in the Attorney General's report. In the view of the Attorney General, this was a legitimate legal approach that did not, as some have portrayed, attempt to force the person concerned through the courts and instead led to the State reaching an agreed settlement with that individual.

The settlement was not secret. It was reported in the press at the time, was ruled on by the High Court and was subsequently the subject of a parliamentary question.

The question that has been raised in recent public discourse is whether the settlement of this case automatically means all people who potentially could have made a similar claim were denied an entitlement and should now receive a similar settlement. The view of the Attorney General is that, even if the case concerned had been contested in court and even if the regulations concerned were determined to be invalid, it does not follow that there would have been an obligation to compensate people who may have benefited from a payment in the absence of the regulations that specifically excluded them. The Attorney General's report sets out that the State had no positive obligation to provide redress in the cases concerned. There are many documents to consider, dating back over a 50-year period, and that is why it is important adequate time is given to consider the issues at hand. My colleague, the Minister for Health, and I have been asked to review these matters and respond to the Government within three months.

However, it is important we do not provide mixed messages on this and that people with disabilities can be assured of this Government's ongoing support. In budget 2023, a number of important supports were brought forward for people with disabilities, including a cost-of-living double payment, a €500 cost-of-living disability support grant, a Christmas bonus double payment that was paid in December, and a €12 increase in weekly payments with proportionate increases for qualified adults. Domiciliary care allowance was increased by €20.50 to €330 per month and has been made available for children with a severe illness or disability who remain in hospital for up to six months after birth. The earnings disregards for both the disability allowance and blind pension were increased by €25 per week, from €140 to €165. These measures build on a range of supports provided in successive budgets, such as improvement to the wage subsidy scheme to facilitate the employment of persons with disabilities; publication of a cost of disability report; the introduction of legislation, known as Catherine's law, to facilitate further education for people with disabilities; and the extension of the invalidity pension to self-employed contributors. I assure the House that the Government remains committed to and ambitious in its support for people with disabilities.

I look forward to hearing the contributions.

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