Dáil debates

Tuesday, 1 February 2005

Disability Bill 2004: Second Stage (Resumed).


Question again proposed: "That the Bill be now read a Second Time".

4:00 pm

Photo of Barry AndrewsBarry Andrews (Dún Laoghaire, Fianna Fail)
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I wish to share time with Deputy Moloney.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Is that agreed? Agreed.

Photo of Barry AndrewsBarry Andrews (Dún Laoghaire, Fianna Fail)
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The Disability Bill is very welcome and I am glad to have the opportunity not only to speak on it but to be listened to, which is an equally important part of the debating process. I will concentrate some of my initial comments on the debate on whether the legislation should be rights based and the compensation which can be made if it is not.

Politics is a tough old game which is all about making tough decisions. Inevitably, whatever tough decisions one makes will cause some people to be unhappy.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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We are all unhappy.

Photo of Barry AndrewsBarry Andrews (Dún Laoghaire, Fianna Fail)
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Some are never happy. It is unusual to be heckled so early in my comments and before I have really arrived at any point whatsoever. I am sorry to see Deputy Stanton is in such a mood as I have ten minutes of further comments to share with him.

Politicians must identify priorities and make tough decisions which, inevitably, cause some to disagree with them. For too long, politicians have been systematically divesting themselves of rights and powers. The process continues through regulations passed on a daily basis. There is no real point in politics if we fail to take tough decisions while continuing to hand responsibility for the decision-making process to other bodies. There is such a thing as a Constitution in this country which provides for separation of powers. The key word is "powers". We have powers, which we divest, foolishly, to the courts if we wish. Every parliament has powers and very few of them give their powers away willingly. However, this is what is being argued for over and over by Members on social and economic matters. It is unfortunate that powers continually trickle out under the doors of Leinster House and this phenomenon has developed over the past 30 or 40 years. The European Union has been charged will almost all day-to-day regulation of agricultural and employment matters while the United Nations has been granted sovereignty over our military capacity and the World Trade Organisation has been given the right to decide our trade policy. Meanwhile, the unions have been granted powers under wage agreements. Many of these slippages in power have been positive but I find it hard to take that politicians would willingly seek to transfer their powers to another body and this is at the core of the view that the courts should be granted the right to determine financial provision for people with disabilities.

A million quangos have powers and quasi-administrative functions and we ought to put a stop to them. We should take on the duties given to us by the people who elected us. We are in the House to make tough decisions and represent those who chose us and not to be popular.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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Tough decisions are being taken against the weakest in society.

5:00 pm

Photo of Barry AndrewsBarry Andrews (Dún Laoghaire, Fianna Fail)
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Section 12 of the Education for Persons with Special Educational Needs Act 2003 addressed the core issue of whether the Minister for Finance would consent to provide funding. This is a normal legislative provision. Section 5 of this legislation goes further, as it requires the Minister, for the first time, to make sure resources are provided and it is up to each Government to decide on priorities within provision. This is what politics is about. As is being evinced by the white heat of debate on this issue, every Government will be judged on whether it has measured up to that provision, which was included for a reason. Opposition parties may be afraid of being in Government one day and not being able to step up to the mark. It is up to politicians to make those choices and section 5 adequately empowers us to do so. This year the Government will allocate 7% of current expenditure on this sector.

The European Convention on Human Rights was transposed into domestic law in 2003. It contains an anti-discrimination article, which does not include disability as a ground. However, a number of people with disabilities have taken cases to ensure their rights to education, family life and privacy are vindicated. It is wrong to think the legislation contains no rights for people with disabilities. There is a view, which I do not share, that the legislation is not rights-based but legislation must be considered in totality. The Bill, together with the Comhairle (Amendment) Bill, provides people with disabilities with a package that ensures the delivery of services to them.

Not much case law has been generated under the European Convention on Human Rights Act 2003. However, the courts must take cognisance of all legislation. Most case law up to now under that Act has related to crime and detention and not disability. Nevertheless, this legislation is evolving and it will be interesting to see how it is implemented. It will be a much more constructive way of providing rights to people with disabilities.

The overall vision is to provide people with an improved quality of life and to foster inclusion. The legislation provides for an independent assessment, a statement of need, an appeal mechanism and the right to personal advocacy. Sectoral plans will also be prepared, separate to the legislation. Previous speakers have stated the Bill's provisions in the area of transport are inadequate. However, significant improvements have been made but more work is needed. For example, 95% of buses on intercity routes have low floors and are accessible by people with disabilities and 50% of the Dublin Bus fleet is low floor and accessible. These represent major steps forward. In addition, the DART is being enhanced for mobility impaired people. This involves major investment by the Government and accessibility will be improved for everybody.

The requirement that 3% of public sector jobs should be reserved for people with disabilities has been maintained and it is a proactive step. The new full-time employment support scheme will also make a major difference. There was always a grey area where one leaves welfare to take up employment. While there is provision for people with disabilities to take up employment without losing their resources immediately, a number are discriminated against and, therefore, a disability card should be introduced, which would give people entitlements on the basis of the extra costs involved.

A number of interesting groups in my constituency have experienced administrative difficulties. I hope changes to the health boards will make life easier for them in accessing resources. The Bill will be of great assistance to all such groups.

Photo of John MoloneyJohn Moloney (Laois-Offaly, Fianna Fail)
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I welcome the Bill and I wish it a safe and successful passage through the House. It is a fair attempt to address the many issues affecting people with disabilities and their representative groups over the years, particularly the feeling of being left out. I will concentrate on the issues of funding, employment targets, genetic testing and appeals and assessments. People with disabilities and their families have felt marginalised for years, not only because of inadequate funding but also because of inadequate representation and appeal facilities. Many individuals and groups felt excluded by the decision making process and by the eventual decisions handed down.

I welcome the new open and transparent approach of the appeal system and the new employment targets. For too long we have talked about the need to achieve those targets, but nevertheless nobody felt there was a difficulty when they were not achieved.

The most important aspect of dealing with disability is the issue of adequate funding. In every endeavour, whether Government or private, money talks. Anybody who doubts the Government's commitment to dealing with disability issues can measure its commitment by the level of funding that has been recognised as necessary to address the issues. It is important not just to recognise the funding committed in the most recent Government announcements but to acknowledge that a previous Minister for Health and Children, Deputy Cowen, recognised the need for multiannual funding for people with disabilities and particular groups. It is important to acknowledge he made that commitment and not just see the figure allocated. We must recognise once and for all that a Government operating a capital programme on a year to year basis cannot provide the necessary funding. The multiannual commitment in 2002 underpinned the direct Government commitment to resolving the issues and this has now become the cornerstone of future Government funding. This is a positive step. People must realise that the multiannual programme will continue into the future and will, I hope, increase programme by programme. The Cowen package, as it is now referred to, creates the provision of capital funding of more than €220 million.

Without rehearsing the facts, I can proudly say that a significant level of funding has been committed to the various areas of disability. I recognise that much has been done, but like everybody in the House, I would like to see much more done. As we are going a distance in recognising the rights of people with disabilities, we should go a step further. In this regard I talk about providing funding for people with disabilities through community employment schemes. We should take this opportunity to recognise that while the situation is far better than it was, funding through the CE schemes is not the answer. If we want to totally support people with disabilities, we should recognise that the current system of recruitment of personal assistants through the CE scheme, whereby people are taken on to support people with disabilities for a three-year programme, is not the answer. First, time is used up by way of a training programme. Second, the individuals recruited are often not suitable — I use the word "suitable" advisedly — for the tasks involved. Third, unless people have a specific interest in helping those with disabilities, they are not cut out for the job. In this regard, while we recognise the increased annual and multiannual funding, there is still a part to be played through direct support for people with disabilities. If the Minister invited in some people representing the Disability Federation of Ireland, they would show clearly that the level of increase required would be minimal to the Exchequer. This avenue should be pursued.

I was very pleased to read Part 4 of the Bill, which deals with the issue of genetic testing. I hope we can go even further on this. I heard some people say the Bill is not welcome. Part 4 is a part that has been welcomed. I am not just latching on to this because it has received public support. Part 4 seeks to safeguard access to employment, insurance and mortgages for people who may be affected by certain medical conditions such as cystic fibrosis and Huntington's disease. I welcome this. This part restricts the use of genetic data in general, especially for employment purposes, and outlaws use for insurance purposes. The use of family information for insurance purposes may be restricted by regulation.

I, and other Members I am sure, have come across couples seeking mortgages where cystic fibrosis has been an issue and the couple has been refused a mortgage. Discrimination does not come across more startlingly than in this regard. Without being parochial, this type of discrimination is an area that should be examined. I urge the Minister to look into the matter of young people being barred from mortgages and from getting the necessary start-up in life. I have come across cases where young people under 40 years old were refused mortgage cover in this regard, despite the fact they had the wherewithal to meet the demands of a mortgage. The Minister could sort out the issue by way of regulation. I would welcome that. I welcome the Minister's intention to protect the area regarding genetic testing. He should not increase the powers of the insurance companies nor should they claim that the law overseeing them is too strict. It is far from that.

We have all paid lip service to the provision with regard to public service employment. However, we must all welcome that this is now on a statutory footing. This, coupled with funding, must be the foundation of our commitment to ensuring we have rights based legislation and an appeals mechanism.

I also welcome the inclusion of assessment officers. Sections 7 to 9 deal with the assessment of need. Those of us who are former members of health boards are well aware that the greatest criticism from people with disabilities and the groups representing them has been that they felt marginalised and left out because there was no specific appeals mechanism for them. Although there was an appeal system, it was often the acting officer of a health board — not to take away from him — who had to deal with the issue, without the experience or the necessary responsibility to deal with appeals. I therefore welcome this section.

I accept the comments made by Deputy Stanton and understand that as spokesman for the Opposition he has to highlight what he considers the flaws.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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It is not only me, but also all the groups out there. If the Deputy talks to them, they will tell him.

Photo of John MoloneyJohn Moloney (Laois-Offaly, Fianna Fail)
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Unlike Deputy Stanton, I think they would give people the chance to put their case, without flogging the horse before it even starts to gallop. I welcome the Bill. It is a sincere effort to provide for disability. That the former Minister for Health and Children, Deputy Cowen, recognised the need to put substantial funding in place has been a build up to the Bill. I welcome it and wish it an easy passage through the House.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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This horse has been at the starting gate for a long time. He has been chomping at the bit and encouragement has been given to his rider, his trainer, and his owner. However, it is at a very late date that it is coming out the gate, long after the race has started.

Photo of John MoloneyJohn Moloney (Laois-Offaly, Fianna Fail)
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He is well trained, however.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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It will take a great deal of training to bring him up to speed because the race has already taken place. I give a limited welcome to the Bill. It is a minimalist response at a late date to a very sensitive issue that has been brought to the attention of the Government again and again. Notwithstanding the compelling nature of the need, the Government struggled with it over and over and failed to produce. If that horse is still around in the stalls, he needs a bucket of oats or something to encourage him to move out.

I do not know why the Government took so long to bring this legislation before us. I do not know if the people with special needs have done something to offend the Government. The legislation has been promised and they have been waiting for five years. I do not know why that should be. It may well be that the Government felt it could not handle this particular situation or that people with disabilities or special needs would be catered for by some other means. People today must contend with new pressures that did not exist in the past. Unlike then, in most cases both parents now have to go out to work and they find it very difficult to cater for a child with special needs. Notwithstanding the fact that the Government claims it has run the economy extremely well and that its coffers are awash with money the most vulnerable group in society is the last one to be recognised.

I listened with interest to a recent radio programme, "Outside the Box", which is presented by people with special needs. The question was asked why it is necessary to make all houses wheelchair friendly. The need for that is obvious. It eliminates the need to change it at a later stage should there be a requirement to do so. One contributor to the programme suggested that the Government was right to do this because of all the money it invests in housing. I almost crashed the car when I heard that. I wondered if I was in the right country. The contributor appeared to have forgotten that the Government cut off investment in housing a long time ago, particularly in regard to the disabled person's grant and special needs. Not only has the new house grant been abolished in recent years but on top of that, any unfortunate person who applied for a disabled person's grant in the last three years has had to wait. Local authorities refused to process any further applications and they banked up received applications as they were unable to meet the need. This is a classic case of special needs that could have been met by Government at a time when so much money is available, yet it refused to do anything about it. The applications still exist and local authorities are doing nothing about them. The Government gets 40% in the form of taxation of the price of every house built in the country, special needs or otherwise. That is just an aside.

Let us look at those who care for people with disabilities. Usually it is parents, be it a one-parent or two-parent household. I referred to the long delay before this limited legislation came to the House. We should remember the Sinnott case. If the Government is so committed to recognising the needs of those with special needs, why did it adopt the attitude it took to the Sinnott case? Why did it go to court to try to defend the indefensible? Surely it would have been preferable to recognise that people with special needs have enough trouble of a physical and financial nature without the "Big Brother" Government denying them certain entitlements. In these circumstances, surely it would have been simple to back off. It would have been the humane thing for Government to do and would have given recognition to people who in many cases have coped on their own for so long.

All Members of the House have dealt with situations that almost made them cry where parents, in some cases elderly people, have sought assistance in their efforts to cater for the special needs of their children. It is difficult for such people to continue to do what they were capable of doing 20 or 30 years earlier. I do not understand why the Government has not recognised the difficulties involved prior to now. Why has it taken so long? I have not even touched on the nitty-gritty of the Bill. I accept what my colleagues said that the legislation deals in a small way with some but not all of the issues.

Let us look at the burden on the carer in a household where there is more than one person with a disability. In some cases a brother or sister may be responsible for the care of a disabled sibling. We must examine whether the Bill addresses the likely requirements of such people in future, legally and unconditionally. The Government is wrong if it considers that it has addressed the issues. In future, improvements will be made in the areas of science and medicine. People are living longer and there is an increasing need to make provision for those with disabilities throughout their adult lives.

The original disability Bill did not get off the starting blocks because the Government considered that its provisions should not be legally enforceable and should be provided at the discretion of Government. People who cater for the needs of their disabled relatives do not have much discretion. They have two options: deal with the matter themselves or deal with the matter themselves. They do not have any other option. They are daily hampered and obstructed by the various agencies that should be there to assist them.

Has any Member recently tried to gain access to health services to assist those with special needs or tried to find where the health service has gone, who is in control or who can provide back-up for people with special needs? I recently dealt with such a case in my constituency. I have made at least 40 phone calls regarding this case but it has been about as effective as if I did not call at all. That is the way we have become as a society. We should not be that way and there are very few excuses for it. It is sad that it is those who need special attention who first feel the lack of it.

The Bill is something of an improvement but it does not go nearly as far as is required. This will not happen until such time as there is a clear recognition on the part of Government of what it must do to meet the rights of those with special needs.

The body that has replaced the health boards, namely, the Health Service Executive is another amorphous mass, a quango which is remote and unaccountable to this House. On telephoning them one sometimes receives a lecture from the officials. They dictate what one should do and imply they know best — the fact that one has done these jobs before they existed does not come into focus. This is what people with disabilities must face. If those of us who are used to dealing with bureaucracy and making representations on behalf of people have difficulty gaining access, the people with special needs will have a great deal more difficulty.

This will continue to be the position until the Minister of State or someone like him decides the time has come to involve all the agencies required to help, namely, the Department of Education and Science, among others; the health agencies and the local authorities. Failure to do so means we are only paying lip service to what this Bill is supposed to be about. We can pass all the legislation we like, but we may find ourselves having to go to court to access the rights as defined in the legislation and I do not see why that should be the case. I know the reason for the failure to progress this Bill in the first instance was along those lines.

The various groups that care for children and adults with special needs have made representations to the Minister and other Deputies in the House. They are in a very good position to identify the flaws in this or any other Bill because they have daily first-hand experience of dealing with the situation. In that context, I compliment the various organisations that care and assist in this area. They have experience of what it is like to wake up in the morning and have a major crisis on their hands, another before lunch and yet another in the evening, all of which need immediate intervention. This means that whatever they had planned the night before must be altered to deal with the situation that presents itself.

Every Deputy deals with a great many cases regarding people with disabilities. That is as it should be. However, I would like to see take place a dramatic change in local authorities and the health services generally in how they cater for these needs. Whether by way of disabled person's grants, back-up carers, home help or support, it behoves all those concerned to respond as a matter of urgency when called upon, not a year later.

One must consider the situation in which a local authority carries out an essential repair on a local authority house — no other body is involved — and, not for the first time, the repair is not carried out effectively. What does one do in such a situation? What does a person with a disability do? How will his needs be met in the context of this legislation being passed? "Not at all" is the answer because the local authority given the responsibility will be able to say,"Sorry, we do not have the money to do this, therefore, we will not do it". That position has pertained up to now.

The sad part is that, even with all the money bursting out of the pockets of the national coffers today, horrendous cases still exist all over the country in which children and adults have not had their needs met because there is an inability to gain access to the money under particular headings with the result that disabled person's grants are backed up. I urge the Minister of State to use his influence in this area because it is an absolute disgrace.

We must also consider the households who must live in private rented accommodation for a considerable period before gaining access to a local authority house if and when one becomes available. Against that, one must consider what it is like to own one's own house which is specially adapted for use by people with special needs. I do not see on the part of the Government a will to make a decision to deal with this issue because of the fear that it might cost money. As long as that fear exists and the situation prevails, whereby people with disabilities do not seem to have the same voting clout as everyone else, that is how it will remain. That is a sad reflection on our society.

I could paper the walls, as I am sure could every other Member of the House, with the representations we have made on behalf of people with heart-rending cases. It is all very well to walk away afterwards declaring that one has made the case the best one could and that it did not work, but what about those who are directly affected? What about the person with the disability or the person caring for him or her and what solace is there for them in all of this? The answer is "very little".

I hope it is fully recognised that certain implications should flow from this Bill. Certain liabilities should fall on the Government and some on State institutions such as responsibility for education, health and housing services. If those liabilities are not recognised and the responsibilities of the Government agencies, through the local authorities, the health boards or the Department of Education and Science, are not taken on board, the legislation will be of no benefit. There is no use in someone stating that they tried. The Government has been trying for a long time now. It has examined the legislation and pawed around it with for the past four or five years and has only at this late stage made a realistic attempt at passing it. Only time will tell what was intended when the legislation was drafted in the first place because the proof of the pudding will be in the taste, by which I mean the Bill's operation. I hope it is a vast improvement on what exists.

Photo of Peter PowerPeter Power (Limerick East, Fianna Fail)
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I am delighted to have an opportunity to discuss and debate this defining Bill. Deputy Durkan commenced his contribution by using a horse-racing analogy in which he stated that he was disappointed this Bill had not reached the starting stalls for a long time. However, I would much prefer that a thoroughbred came to the starting stalls rather than a nag. I would much prefer to have a horse which stayed the course rather than one which was ill thought-out, ill-bred and perhaps came from a bad stable. I would prefer to have a thoroughbred that comes from a good stable and will stand the test of time. This Bill, long though it has been in its gestation, will stand the test of time for the reasons I will set out.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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It has been an elephantine gestation period.

Photo of Peter PowerPeter Power (Limerick East, Fianna Fail)
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We can all draw analogies.

This Bill, if implemented in its entirety as part of a national disability strategy, has the capacity to improve the lives of an enormous section of our community which has up to now been sadly neglected by many Administrations over the years. Before I discuss the detailed provisions of the Bill, I will address the context in which this Bill has come before the House and some of the history behind it.

In drafting this legislation, there were two different and divergent approaches, the so-called rights-based approach and the delivery-based approach. I compliment those individuals and groups involved in drafting this complex legislation. It has been a long process with huge inputs from the Department, the disability groups and NAMHI. I also compliment those disability legislative groups and the friends and parents of those with intellectual disabilities, such as Ger South in the Limerick East constituency. All had an important role in bringing this Bill to where we are now. It now rests on the desk of the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Fahey, and I wish him well in bringing this complex Bill to fruition.

This is one of the few Bills that came before committee before it came to the floor of the House. The Committee on Justice, Equality, Defence and Women's Rights, under the chairmanship of Deputy Ardagh, decided to hold a series of hearings over several weeks on the legislation. All interested parties were invited to attend. Before the Bill entered the hothouse atmosphere of the Chamber, it was discussed in a cool, calm and reflective atmosphere, to get the views of the disability groups and experts. I sat through, as did Deputy Stanton, many of those sessions, many of which were enlightening and informed some of my views. There was excellent feedback from the sessions and I compliment Deputy Ardagh for bringing forth this initiative.

Placing the Bill in its wider context is important. It is unfortunate that people seek to debate it in isolation. I am the first to admit that if one examined the Bill on its own, one would question whether it has the capacity to deliver the results and goals shared by all Members. The Bill must be viewed in the context of the full implementation of the national disability strategy. This involves the full implementation of the Comhairle (Amendment) Bill and other sectoral plans and the full provision of the Cowen package of €900 million, announced in the budget. The Disability Bill on its own will not deliver results unless the other elements of the national disability strategy are implemented. It is part of an important package, not an À la carte menu. I compliment the Minister of State, his predecessor, Deputy O'Dea, and their officials for taking their time to engage with all groups in ensuring the package was right. An analogy can be drawn with the Finance Bill with which the Minister for Finance, Deputy Cowen, is familiar. The Finance Bill cannot be examined alone without considering what came before it, such as the Estimates process. The Finance Bill cannot be examined as an instrument in changing revenue raising laws without considering the detailed provisions of the budget. I ask that the Disability Bill be considered in the same light.

Regarding the ethos underpinning the Bill, it is important to analyse the different and divergent approaches, both of which are genuinely and honestly held by their proponents. One is the rights-based approach, the other, the delivery-based approach. The former purports to extensively set out in legislation the rights and entitlements for people with disabilities. This approach allows the right to resort to litigation to have those rights enforced. On the face of it, it is a laudable objective. I see its merits in the context of unlimited resources. However, its fundamental premise that delivery automatically follows the creation of the right is flawed. It is wrong to make that assumption because, when examined carefully, it does not stand up to logical criticism. I accept people come from different backgrounds when approaching this area. However, my one abiding memory from the hearings of the Committee on Justice, Equality, Defence and Women's Rights is that one can discuss rights for people with disabilities until the cows come home. However, it is an academic discussion unless the substantial resources needed to enforce those rights and deliver their services are available.

The opposite is also true. There is no point throwing unlimited resources, be it €900 million or €1.8 billion, at the issue unless a strategic framework and approach to delivery is in place. We have all seen that with the health services. A delivery-based approach, enshrined in the Bill, is the correct way to deal with this complex and difficult area. For the first time, the Bill offers a reasonably structured and strategic approach to the delivery of services for people with disabilities. It is about putting a meaningful and deliverable system in place. It is fine for Members to have an academic discussion on rights. However, we would be abdicating our responsibilities to lawyers who will run to the High Court for months on end and then the Supreme Court to discuss rights. There are no finer people than lawyers to do so at enormous cost. The Bill will put in play a system that will make a difference for people by delivering on the ground. I respect the proposers of the rights-based approach. Their history and personal involvement in the lives and welfare of those they seek to care for cannot be questioned. I have discussed the Bill with constituents who are the friends and parents of people with intellectual disabilities. However, I believe the rights-based approach is fundamentally flawed and will not bring about the objectives we all seek.

I want to dispel the myth that those who argue in good faith for a different approach are somehow not in favour of the delivery of services and benefits for people with disabilities. That myth must finally be nailed. We all have the common goal of delivering services. Those who advocate an alternative approach have a bona fide right to put forward an approach that will work for people on the ground. The Bill introduces fundamentally greater rights than before. One must distinguish between the absolute rights people discuss in an academic and nebulous way from the concrete statutory rights of delivery, which this legislation will provide if underpinned by proper funding.

There are inevitable consequences to providing the absolute rights to which academics and others referred in underpinning the opposing argument. First, a huge proportion of the €900 million announced in the budget, and greater funding in years to come, will be diverted each year in deciding what these absolute rights are. We will not have a clue from one month to the next what these rights are, because it will involve many lawyers being employed to make decisions, and the rights to which people are entitled will change on a yearly and monthly basis. How can one run a proper strategic and structured approach to this whole area if one must wait for the lawyers to go down to the Four Courts, and go before some judge who may have different views and a different ethos from anyone in this House? It is the judge who would then lay down the law, which is surely the ultimate abdication by us as legislators. Second, the €900 million package over the multi-annual programme — this is the key point if one adopts a different approach — would inevitably be spread disproportionately to the areas designated by the courts. In other words, if the courts decided in six months that everyone in the country with any sort of speech or language disorder is entitled to the enormous rights enshrined by law, and protected by the courts, how far would the €900 million go? With that type of approach the money would immediately go into speech therapy, laudable though that service is, but what about people with other intellectual disabilities such as autism and so on? As there would be a fundamentally skewed approach to this whole area, the entire strategy would collapse.

There is a much better approach. The Minister for Finance, Deputy Cowen has committed some €900 million and no one can doubt his sincerity and commitment in this area. What we should address here is where to allocate these resources. We should not challenge this Bill so that lawyers can litigate from here to eternity. A legitimate debate in which we as legislators should engage is about where to spend the fund. To advocate a different approach is fundamentally wrong.

Having said that, there is one aspect of the new legislation which changes the previous legislation, namely, the rowing back from section 47 of the previous legislation, which provided that people could not have access to the courts. That approach was not correct, but access to the courts should be in the context of ensuring that the services that will be delivered under the Bill are accessible.

I would like to address some of the criticisms of the Bill. There will be a welcome conference by NAMHI on independent assessment. Is it really independent? We have a statutory approach now in this Bill. How else would we do it? If one examines the social welfare and planning codes, should one change over to a completely independent body in the first instance? Even under these codes, one does not have rights to the court as one does in this instance to ensure one's service statement is implemented. The other criticism is that this is top heavy in bureaucracy but how else can we ensure that the rights enshrined in the legislation to independent assessors, service statements, liaison officials and appeals, are provided?

I will conclude by saying that one cannot divorce the legislation from the context in which it has come to this House. The legislation is not worth a hat of crabs unless it has a huge amount of funding underpinning it, which is guaranteed and now in place. No one can doubt the commitment of the Minister, Deputy Cowen, to what I predict will become known as the Cowen package. His record in this area speaks for itself. Even the disability groups would be the first to acknowledge this. It would be easy to introduce a Bill without a strategy, but for years people have been calling for a strategic approach.

Deputy Durkan made a very telling point at the end of his contribution. He said that we do not want to reach a stage where people are coming to his constituency clinics, cap in hand, on an ad hoc basis, begging almost for a delivery of services. Neither do I nor anyone else on this side of the House. The question is what to say to these people. Do we tell them to toddle along to their friendly lawyer, end up in the High Court in two years' time, roll the dice, spend an enormous amount of money and see what they are given, or do we say, "This is the structure in place. This is a mechanism to provide the delivery of the services to which we believe you are entitled. Not alone that, but we are providing the funding to match and underpin it."? That is the reply I want to give to people who come to my clinic, not the reply Deputy Durkan gave. It is a strategic and focused approach to the delivery of service. If funded properly in the long term, the legislation will go a long way towards providing a good service. I commend the Bill to the House.

6:00 pm

Photo of John PerryJohn Perry (Sligo-Leitrim, Fine Gael)
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I am pleased to speak on this important Bill. On the point Deputy Peter Power made, this may not be fully constitutional. In an open democracy, people feel they should have a right to go to the courts if they wish. Prohibitive costs should not be a sole factor for not going to the courts if people genuinely believe they are entitled to certain rights. The Bill is a straitjacket from that point of view.

Obviously we are talking about how the €900 million will be spent, the value for money aspect and the service providers. As Chairman of the Committee of Public Accounts for two years, I know this is an area of State services which is not fully accounted for by the Comptroller and Auditor General. Very often section 45 money, which is dispersed by Departments, is not allocated to the people who need it. Some €900 million is being provided but there is a saying in business, "Turnover is vanity and profit is sanity". There is a great deal of vanity involved in the provision of this €900 million. However, the sanity aspect is in what the fund will provide, how it will be spent and whether it will be managed properly so that the people who need the money will receive it. Because the Government is awash with money, it tries to solve problems by allocating funds, not by spending them effectively. This is the wrong benchmark. I hear several Ministers stating that they will give €20 million towards certain projects. It is regrettable that there are not proper procedures in place and evaluations carried out in this regard. If that were done, perhaps less money would deliver much better results.

I compliment Deputy Stanton on the extraordinary work he did on the Bill. He met everyone involved in the sector and listened attentively to their concerns. That is important. It is only when one meets those with disabilities, their immediate families, their carers and the entire sector, that one can speak with authority on these matters. The view of Deputy Stanton and of Fine Gael is that this Bill is greatly flawed. In its programme for Government in June 2002, the Government promised to introduce a Disability Bill which would include the provision for rights of assessment, provision, appeals and enforcement. However, despite repeated Government pledges the published Bill is not human-rights based. It falls short of providing an unambiguous right to progressive realisation of an independent holistic assessment of need, with the guarantee of independent and effective channels for complaint and appeal.

The main flaws of the Bill are that the definition of disability is too restrictive, there is no real right to an assessment, no provision for people to have all their identified needs met over time and the complaints system is not independent. Furthermore, it is cumbersome, expensive and basically incapable of taking account of people's needs. Section 19 has the same effect as section 47 of the last Disability Bill in that it stops people taking legal action to pursue their acknowledged needs. That may be unconstitutional and is a major issue. The courts are separate from the legislative body and this is an apparent infringement on the rights of people to take legal action. It is not right.

The Bill aspires to be positive and includes several important rights but it is easy to say we will give people rights and quite different for people to feel they have those rights. To have rights within your country is to feel that you belong, that you have something to give to the country. There was never any doubt on a personal level that from person to person, those with disabilities have as much to give as those without disabilities. It was on a legislative level that people were being let down and are still being let down. This country has reneged on a great number of people with disabilities purely because of a disability. People are regularly being let down by the Government and despite many debates in these Chambers and coverage in the media, people's lives have not changed.

This Bill has been much talked about and discussed as far back as the collapse of the Disability Bill 2001. Prior to the last election there was great commitment given in this area. Much is made of the announcement made by the Minister in the recent budget but which merely involves a cash envelope of funding which has no immediate short-term effect. Generally speaking, people with a mental disability may not be covered by the Bill.

The definition of disability in the Bill taken from the National Disability Authority Act 1999, is different from that in the Equal Status Act 2000. The Bill's definition says the disability must be "enduring", thereby potentially excluding people with a mental disability. The definition in the Equal Status Act 2000 includes "a disability which exists at present or previously existed but no longer exists or may exist in the future or which is imputed to the person." That is ambiguous and needs to be clarified.

Section 5 of the Bill is incomprehensible. The appeals process is very complex and cumbersome, with hundreds of people needed for this process. We need to ensure that whatever limited funds are available are spent in an effective manner. That is imperative. There has been too much talking and people need action. The legislation is not rights-based, though the Taoiseach is on record as saying that it would be. That is disappointing. The key strategy element of the Bill was to be the right to an independent assessment of health and educational needs undertaken without regard to cost or capacity to supply the service. There was to be a right to a related services statement setting out the services that can be provided within the resources available to the health or educational service provider and a right to redress through independent complaints and appeals mechanisms including ultimately enforcement of decisions through the Circuit Court. This structure gives statute-based systems for assessment, service statements, redress and enforcement. Of particular importance, people seeking services must be allowed to give their input to the assessment process, special liaison officers will be appointed who will help communication between individuals and the relevant public bodies and the redress systems are similar to those applying for planning, employment, equality and social welfare matters.

The Bill also puts the policy of mainstreaming on a statutory footing so that public bodies must cater for people with disabilities as well as other citizens. In addition, public bodies will be obliged to arrange for disability access to public buildings and to provide information and other services in an accessible manner. Of equal importance is the employment of people with disabilities within the public service. Last week a person visited my office who was working in the health board on a temporary contract and was more than suitable for the job. The person was let go after the six month contract was up and though there was a possibility of getting a permanent position, the job was not offered. The lady was working on the switchboard, doing a very good job.

We are talking of an aspirational criterion. There is no right to service. It is important that there is a contract within the public service. The Bill puts a 3% quota for employment of people with disabilities in the public service on a statutory basis. However, the compliance provisions for this section are weak, in that they state that a non-complying body can be "requested " rather than required to comply with section 47(1). That is a major shortfall in the Bill. If we are talking of the employment of people with disabilities we are talking of massive growth in the public service in terms of the large number of jobs created. There is no point in merely paying lip service to the concept. People with disabilities should be working in local authorities and semi-State bodies. We are talking about leading by example, of giving a clear message to the private sector. The State should follow through on this commitment and live up to it. We are talking of people with disabilities who are very competent and well able to hold jobs. It is very disappointing if the State is not fully compliant with the 3% commitment, and that is the case as we speak.

There is no clear definition given. The Bill is big on hype and has failed in many areas. We are talking of one of the wealthiest economies in the world and though we talk of providing €900 million, that is not a huge amount of money. The money is to be provided over a timeframe. The success of this Bill will be determined on the availability of funds in the future. There is no remit for people to raise funds within the timeframe of a budget. Funds are being greatly cut. The disabled person's grant is only small money yet it is being cut by every local authority. There are people in long-term care who need ramps into their houses. They have given great service to the State and may be hospitalised and unable to return home because their houses have not been accommodated to their needs. They seek essential renovations to their houses, perhaps moving shower facilities downstairs, building a bedroom on ground level or installing a ramp, but that work is not being done. We are talking about people with disabilities and the aged, who have been forgotten.

On another, unrelated issue, they were being charged illegally for long-term care. Those with disabilities could come home and cost the State little or no money, yet the State is now paying large monthly sums. I will not even comment on that, since it is before the courts. We clearly have people with disabilities in long-term care who could be accommodated at home for small amounts, yet those funds are not being spent. We can talk a great deal, but local authorities have achieved real value for money. For €10,000 per year, a person could leave hospital care, freeing State contract beds by getting people into their own homes.

Much of this Bill is lip service about giving hundreds of millions of euro. I would like to know where it is being spent and how effective the money allocated is in the provision of services to those with disabilities. In every community there are people who could maintain a job but need a small investment through the local authority, where funds can be spent effectively to obtain real value for money.

I am somewhat disappointed. With the recent wealth in the economy, millions have come from offshore accounts. At the end of the year, the public finances were €500 million better off than anticipated. We are discussing the timeframe, and I would like to know that this cash envelope will go forward. It seems a great deal expressed over several years, but not regarding what is spent each year when one considers independent living and those who depend on job creation in rehabilitation. In a recent case in Sligo, people were working in rehabilitation doing very good contract work, but the tender was awarded by a State body to a Northern Ireland company, meaning the jobs of people who had been getting up in the morning to attend their employment were very much in doubt.

The constraint on the Bill is that there is no right to service. Even after the required assessment has been conducted, the provision of a service is subject to the decision of a liaison officer, which is extremely worrying. The Bill provides for the first time for genetic testing and the processing of genetic data, but it may be necessary to establish such a provision. It would be preferable if that very important ethical issue were separated from the Disability Bill 2004 to allow for proper public debate on its potential consequences. The Minister should certainly consider that.

The inclusion of advocacy services is to be welcomed, but I am concerned that the location of such services within the Government agency Comhairle may make them subject to a conflict of interest where advocacy is required regarding another State body. That it embraces several Departments is a contradiction. Each Minister is to create a sectoral plan containing information regarding the Department's service to people with disabilities. The term "information" suggests no obligation to provide firm commitments in such plans. The Department of Health and Children's on-line plan is largely a restatement of existing policy and refers to implementing Planning for the Future 1984 and the Mental Health Act 2001. Much is a re-enactment of data already on file.

The Bill includes positive action and several important rights, but it is easy to say that we will give people rights and a totally different matter for them to feel they have them. To know that one has rights in one's country is to feel that one belongs and that one has something to contribute to it. That is where the creation of jobs is so important. People must have the capability. There is no regulation of the private sector, and I was rather disappointed that there was no major debate with IBEC, the Small Firms' Association or the private sector in general regarding the potential creation of jobs — that chance was very much lost. Those people can contribute to the economy, but there has not been any major dialogue with the private sector on the possibilities of partnership with State services. The Bill embraces six Departments, but it is regrettable that there is little or no involvement with the private sector, since small businesses are the hub of the economy. In every community and village there are those able to employ people and create jobs. The private sector should be encouraged to create enterprise locally and, equally importantly, to incorporate those with disabilities.

That chance has been lost in this Bill, which is certainly a disappointment. It has been very much hyped and camouflaged by the Minister's announcement of €900 million, which in any sense is not nearly adequate. No accountability mechanism has been built in regarding controls on the ongoing management of funds. We have certainly seen how much money is wasted in the economy. The adjudication by the Government to date on every project has focused on how much is spent rather than on the objective of providing a service that is effective and makes a real difference to the lives of those with disabilities.

Photo of Michael FinneranMichael Finneran (Longford-Roscommon, Fianna Fail)
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I welcome the opportunity to speak on this very important legislation and acknowledge the presence of the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Fahey, who is a very suitable choice to deal with it. When in the Department of Health and Children in a previous Government, he was certainly a hands-on person. At that time, both he and the Minister, Deputy Cowen, received due recognition for their contribution to the disability budget. That has been discussed since. I am extremely pleased that the Minister, Deputy Cowen, has not changed his mind and that, when he got the opportunity to deliver a budget, those with disabilities received the priority they deserved.

Regarding criticism of what has been proposed in the Bill or announced in the budget, I can certainly speak with some authority from my constituency and county, my background in health and my continued involvement in the area, particularly with disability services. In Roscommon we are pleased to have a community-based service. I know that the Department of Health and Children considers that model appropriate for other areas. It works extremely well, and several organisations contribute enormously to current provision. In particular, apart from the Western Health Board, which is the Government arm of the services, we have the Brothers of Charity, who provide a service to Roscommon and other counties of which we are very proud. Next Friday, the Taoiseach will officially open their headquarters and assessment centre in Roscommon town built recently for almost €2 million. We have also the involvement of the Irish Wheelchair Association in the county. It has provided the only wheelchair accessible 39-bed, en suite hotel in the country, with all the necessary back-up facilities. Indeed, that facility is used by the public for functions, parties and even weddings.

In addition, we have one of the few fishing bay developments in the country. It is a 26-bay development that is fully wheelchair accessible by car to the ramp and from the ramp to the river. That development was funded to the tune of £300,000 by none other than the Minister of State, Deputy Frank Fahey, when he was the Minister with responsibility for fisheries. We also have the Roscommon Association for the Mentally Handicapped and the Roscommon Mental Health Association, of which I have been chairperson for the past number of years.

I assure the House that budget 2004, which will provide the moneys to 2005, was welcomed openly and publicly by the associations and organisations in my county. They are very focused on the legislation, which they welcome. They have concerns about some areas but their views generally are very positive as regards the legislation.

It is important when debating disability legislation in this House that we do not talk off the top of our heads, so to speak, but as a result of our own consultation, involvement and hands-on approach as public representatives in terms of what is happening in our own regions. If we do that we are representing in a way that is meaningful and helpful to those who have been neglected for so long rather than holding a grandiose view that may not be appropriate to what is needed in the regions we represent.

I welcome the decision of the Minister, Deputy Cowen, to provide for a multi-annual budget, which is innovative. Allocating the funds available to him is the first important step in terms of this and subsequent Governments looking after our people with disabilities. The level of funding is enormous in comparison to anything that happened in the past. I have examined the figures and know what has been happening for the past 30 years as regards funding for people with a disability. People with disabilities were given lip service over those years and it is only recently that anything positive has been done and that opportunities are being presented to people to allow them live an independent, full life. For many years, people with a disability found themselves confined to institutions and forgotten. That was an inappropriate approach to those people. Indeed, people who were highly intellectual but who suffered some physical disability were dismissed on the basis that they had a mental disability and were incarcerated in institutions.

The psychiatric service was a catch-all response to all the problems of this nation. I am glad that system is no longer in place and that there is an opportunity for children with disabilities to avail of assessment, psychology services and a range of back-up facilities as proposed in the Bill. That will provide them with an opportunity to have their educational, health and personal assistant needs met, which is vitally important to people with disabilities.

I have examined the Bill in detail and talked to many people about it. I am in constant touch with those who are in charge of disability areas in my constituency and throughout my county. They are very positive about the budget and the fact that we have a Disability Bill that will look after the needs and rights of the people for whom they care. Parents and families of people with disabilities have always been concerned and, until now, got very little help or support from anybody. In the past ten years, bar direct intervention by the Minister, Deputy Cowen, when he was Minister for Health, I did not see any Minister for Health take what I consider to be the appropriate action as regards people with disabilities, that is, put in place finance and resources for them.

This Government is committed to ensuring that those with disabilities are able to participate fully in every aspect of Irish life without discrimination. In this legislation it is putting in place a programme of action to support that but unless that programme of action is financed, it will be of no use. The necessary finances are in the budget, not for 2005, 2006 or 2007 but up to 2009, and back-up facilities are provided for also.

We have turned over a new leaf in the area of support for disability. One only has to consider the number of people who have been employed over the recent period. In 1997, there were 100 special resource teachers for children with special needs. There are now 2,300 resource teachers in the primary system. By any measurement, that is an extraordinary development since 1997. The Governments that achieved that are to be complimented, and I compliment the 1997 to 2002 Government and this Government for providing that amount of support in this area, which is very necessary.

Major achievements have taken place in many other areas. We have turned over a new leaf as regards people with disabilities. I am always open to hearing what others have to say, including members of the Opposition and those who differ with the Minister or the Government on a particular matter. One view that should be challenged openly and debated — it appears to be coming directly from the main Opposition party and perhaps from others — is that there should be a system of involvement of the courts in the area of disability. As somebody who has some experience in the service, I assure the House that is not the right road on which to go forward. It would be a retrograde step, it would prove confrontational and it would not be in the best interests of people with disabilities.

I have two criticisms as regards support for people with disabilities or those are associated with them. I have always spoken out on behalf of people with disabilities and will continue to do so. In the context of the overall health budget, acute and other areas of medicine have moved forward at the expense of the psychiatric service. That is wrong. It is inappropriate that only 7% of the health budget is dedicated to the psychiatric service. I accept the service is backed up through disability support. In the past, this was, of course, part of the psychiatric service. I remain of the view that it is important to ensure the level of funding is increased to 10%. This would have a knock-on effect in terms of the cost to the State afterwards.

I am aware — this can be supported by research, statistics and people in the profession with whom I am acquainted — that many social or borderline psychiatric cases are incarcerated in our prisons, which is inappropriate and wrong. If we had a better funded and resourced psychiatric service operating on a community basis, this would not be the case. Currently these cases, many of which are social in nature, are being dealt with under public order legislation. That is the wrong method to use in dealing with problems of this sort. I accept that he could not make the final call in respect of this area but the Minister of State should give consideration to it because changes would be welcomed. One of the ways to encourage such changes would be to create a better balance in the health budget in respect of the psychiatric service.

Another area to which I wish to refer — this also does not come within the ambit of the Minister of State but within that of the Department of Social and Family Affairs — involves the regulation which allows people to draw down only one social welfare payment. This anomaly has an unfair impact on survivors or widows who are looking after handicapped sons or daughters. It is time the regulation was changed to accommodate people on widow's pensions who are caring for sons or daughters with disabilities and who are prevented from drawing down carer's allowance or similar payments which could supplement their incomes. If these people were not obliged to care for their sons or daughters, they could be in employment and earning another income. There are many people who fall into that category, as evidenced by reports from the Joint Committee on Social and Family Affairs.

I am aware that when a new scheme is introduced or an existing one extended, there can be a knock-on effect and the floodgates can open. The latter can prove a grave imposition on the finances of the country. When we dealt with the pre-1953 issue, the early estimates were that it would cost £100 million. However, as everyone is aware, the costs went through the roof. I feel strongly about the area to which I refer, however, and consideration should be given to it at some stage. I accept that it falls outside the terms of the Bill but when we discuss disability we must not forget that the family members of people with disabilities often care for them.

I compliment the Minister of State, Deputy Fahey, and the Government on the extensive Bill that has been presented to the House. It contains a huge amount of detail and presents an opportunity for us to move forward and enter a new era in the care of people with disabilities in terms of giving them the equal status, opportunities and independence they need. In the past, people with disabilities were treated as second class citizens. As already stated, many of them were subjected to the catch-all solution of being placed in psychiatric institutions. That was completely inappropriate. Institutional care should be a last resort in the area of disability. Indeed, it should be a last resort in any situation. Such care is not appropriate except in cases where it is absolutely necessary.

It is sometimes an easy option and one reads about court cases etc., where, when something bad is heard, people come to believe that a particular individual should be locked up and the key thrown away. I have never agreed with that kind of thinking. By and large, there is some good in everybody. In many cases, it may not be a person's fault that they got into the situation in which they find themselves. It is usually as a result of the way they were treated as children or adults.

In terms of the debate on the Bill and the broader debate on its implementation and the partners that will be involved in this regard, we should be open and should not be restricted or closeted in our thinking. We should continue to listen to what people have to say and reflect matters if problems arise. As far as I am concerned, the Bill and the recent budget are the two most important steps taken during my lifetime as regards support for people with disabilities.

Breeda Moynihan-Cronin (Kerry South, Labour)
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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.

7:00 pm

Photo of Seán HaugheySeán Haughey (Dublin North Central, Fianna Fail)
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Deputy Moynihan-Cronin has given a very constructive criticism of this Bill and I am sure the Minister of State will take many of these practical suggestions on board. This is landmark and very comprehensive legislation. The Bill has been under preparation for some time and there has been widespread consultation with all the various interested parties in bringing about its publication. It has been criticised by various sectors and we have heard some of that here this evening. When all is said and done, it has to be recognised that this Bill is a major step forward for disabled people and their families. I wish to congratulate a number of Ministers who were involved in its preparation. I congratulate the then Minister of State, Deputy Mary Wallace, the then Minister of State, Deputy O'Dea, as well as the current Minister of State, Deputy Fahey. I congratulate him on presenting the Bill to the House and for explaining its provisions to Deputies, Senators and the wider public. I wish him well in his endeavours to bring the Bill through both Houses of the Oireachtas.

This Bill has to be put in context. It is but one part of the national disability strategy, which was published last year. That strategy comprises the Disability Bill 2004, now under discussion, the Comhairle (Amendment) Bill 2004, already debated in the House, six outline sectoral plans and a commitment to a multi-annual investment programme for disability support services. The strategy builds on existing policy and legislation, including the Employment Equality Act 1998, the Equal Status Act 2000, the Equality Act 2004 and the Education of Persons with Special Educational Needs Act 2004.

Debate adjourned.