Frank Fahey (Galway West, Fianna Fail)

——changing Cabinet procedures so that legislation and policy proposals submitted to Government would take account of the impact on people with disabilities; and the issue of audio-description which was raised in regard to the broadcasting provisions in the Bill. I hope to be in a position to bring forward a number of Government amendments to address as many of these proposals, as is possible, following detailed examination.

A main issue for some disability groups has been the question of justiciable social rights. There are divergent views about access to the courts as the primary means of vindicating these rights. One view is that ultimate redress in the courts is fundamental to the concept of social rights delivery. On the other hand, social service provision for any one group must be balanced with the valid and competing needs of other service users. The statute-based rights and redress mechanisms in the Bill find their basis in this reality. The Bill provides a right to an independent assessment of need, a right to a service statement — the content of which will have regard to resource availability, eligibility and other factors — and a right of redress and enforcement. The Bill provides an easily accessible statute-based means of redress in regard to assessment and services.

I have listened, time and time again, to calls for the Bill to be rights-based — in other words that it should give justiciable rights to services. There appears to be a belief this will guarantee services to meet needs or that case law will drive service delivery. The simple fact is that it will not, at least not in the interests of people with disabilities generally. Already in the education area, for every €1 given in settlement of legal cases paid out by the Department of Education and Science, €4 went to pay the fees of members of the legal profession. Aside from the legal costs, a court case can cause delay and hardship for a person with disability and his or her family. The Bill, on the other hand, establishes a fair, person-centred system for complaint and appeal that will give real results relatively quickly and informally.

A rights-based approach to service provision on the lines sought by interest groups, and indeed the Opposition in the Dáil, is not evident in other developed common law countries. If we look at the work of respected independent authorities such as NESC, we see a recognition of the complexity of the issue, the need to understand the relationship between rights and standards and the fact that a focus on legal rights cannot always deliver in the simple way that is claimed. In its recently published report, NESC reiterates the complexities involved. In looking at socio-economic rights, NESC refers to well functioning systems being able to deliver rights and states that, "stronger institutional and policy capabilities, which are in part the fruit of an increase in resources, ...enrich the content and meaning of rights". The Government has taken the practical approach by increasing investment to build capacity, so the rights to assessment and services contained in the Bill, and the quasi-judicial redress process that underpins them, can be delivered in practice.

The national disability strategy including the Bill and the multi-annual investment programme provide a strong basis for this planned approach which can respond to real needs. It enables the Government to fulfil its political duty to use available resources to the benefit of people with disabilities and balance the funding needs of other services and the rights and expectations of those who depend on them. Such decisions are proper to the political arena and are not matters primarily for case law.

I am the first to admit there is a historical deficit in regard to disability and there are limitations in current services. I have listened to criticisms of the Bill because service provision is subject to resource availability. In the real world, all services are subject to resource availability — that is the harsh reality and it is not unique to Ireland. However, that does not mean we ignore the historic deficits or shortfalls in disability services. What it means is that we must be practical in facing up to our responsibilities and we are doing that. We are putting in place a firm financial programme and a national disability strategy to establish a sound base for service provision. Under the Bill, Ministers, for the first time, will make an explicit determination of the amount of funding they will allocate each year for the purposes of the Bill.

In drawing up the legislation, regard has been had to benchmarks internationally. The ESRI report entitled On Rights-Based Services for People with Disabilities was commissioned by my Department in 2003 to stimulate debate and gather factual information about the nature of disability legislation in other common law countries. The research shows that the commonalities in legislation internationally tend to be confined to anti-discrimination legislation. There is little consistency as to the kind of legislation, if any, underpinning disability service provision. The research dispels many assumptions and shows wide variation in the way disability-specific service provision is treated in the countries surveyed — Great Britain, New Zealand, Australia, the US, Canada and Sweden. The Bill compares well with legislation for disability service provision elsewhere and in common with that legislation establishes a link between service provision and resource availability.

The Disability Bill is a positive action measure comprising a number of distinct initiatives, which, taken together, will lead over time to a sustained improvement in the lives of people with disabilities. The initiatives in Part 2 deal with the individual health and education needs of each person with a disability. The initiatives in Parts 3 and 5 place statutory obligations on public bodies to support access for people with disabilities to mainstream public services and to public service employment. Parts 4, 6 and 7 deal with genetic testing, the establishment of a centre for excellence in universal design and miscellaneous matters.

I will outline the main provisions of the Bill. Provisions of particular importance include the definition of disability and section 5. The definition of "disability" in section 2 is in line with the definition in the National Disability Authority Act 1999. Section 5 is a novel provision which makes specific arrangements for Ministers to earmark funding for the purpose of implementing the provisions of the legislation. There is also provision for a review of the operation of the Bill no later than five years after commencement.

Part 2 establishes a right to an independent assessment of need, an individual service statement and redress. Section 7 defines the key terms used in this part. The definition of "disability" for the purposes of this part covers persons whose disability is likely to be permanent, results in significant difficulty communicating, learning, moving or significantly disordered thought processes and gives rise to a need for services on a continual basis. A "health service" is defined to include a "personal social service" and "education service" relates to the education of persons over 18 in a recognised school, or a programme of education, training or instruction specified by the Minister for Education and Science. The section assigns additional functions to the National Council for Special Education relating to the education of persons over 18 years. It also gives HSE officials access to the education appeals board where the council fails to comply with a request for co-operation in preparing a service statement.

Sections 8 to 10, inclusive, deal with the assessment of need. Assessment officers will be appointed by the executive and will be independent in the performance of their functions. The assessment will cover health and education services. A person who considers that he or she may have a disability, may apply to a health board for an assessment of need and the assessment will be commenced within three months of the date of the application. Each assessment of need will involve the applicant in the process and result in an assessment report which will specify an indicative date for review. Services will be prioritised in the assessment report and optimal timescales for delivery will be set out. Each assessment of need will be independent in three respects. First, assessment officers will be statutorily independent, second, the assessment itself will be undertaken without regard to existing service levels or related cost considerations and, third, the assessment will take place in accordance with standards determined by a new independent body, the Health Information and Quality Authority, HIQA.

Section 11 deals with the individual service statements. Liaison officers will be appointed in the HSE as a key point of contact for the preparation of service statements. Following assessment, a liaison officer will prepare a service statement for the person concerned. In preparing the service statement, the legislation requires the officer to have regard to the HSE's budget for that year and other criteria, including the eligibility of the person for the service and the practicability of providing the service. Otherwise, the service statement will seek to reflect the priorities and timescales for the health and education services identified in the assessment report.

In an effort to aid service co-ordination, section 12 specifies that liaison officers, with the consent of the person concerned, will contact service providers outside the health and education sectors and give them any information needed to assist access to services, other than those provided for in the assessment of need. Section 13 requires the HSE to keep records as an aid to service planning. The HSE must compile a report each year for the Minister for Health and Children of the services being provided and the aggregate needs identified in assessments, including the priority of these needs, the optimal time scales for delivery and the estimated cost of such provision.

Part 2 provides for three stages of redress, complaint, appeal and enforcement. Section 14 allows for the making of a complaint relating to an assessment or service. Section 15 requires the HSE to appoint complaints officers who will be statutorily independent in the performance of their functions. Following examination of a complaint, the complaints officer may seek to resolve it informally. If this is not possible, he or she will investigate the complaint, issue findings and make a recommendation for implementation by the HSE or head of the education service provider, where appropriate.

Sections 16 to 20, inclusive, and the Schedule to the Bill deal with the appeals officer and appeals. The appeals officer will occupy an independent statutory office and will be appointed by the Minister for Health and Children. The officer will hear appeals and will have staff to whom functions can be delegated and a budget to undertake the work. The officer will make an annual report to the Minister for Health and Children in respect of his or her functions. A copy of the report will be laid before both Houses of the Oireachtas. Under sections 18 and 23, the appeals officer is given substantial powers to call witnesses, obtain documents, enter premises and ultimately to secure a search warrant from the District Court, if necessary.

A recommendation of a complaints officer can be appealed to the appeals officer by the applicant, the HSE or head of an education service provider. He or she will be required to take account of the same considerations as the complaints officer in coming to a decision, such as resources, eligibility and practicability considerations. Section 20 provides that a determination of the appeals officer will be final and not referable to the courts save on a point of law.

Section 18 provides that the appeals officer may arrange for mediation, unless either party to the appeal objects, if he or she considers that the issue could be resolved in this way. Unresolved cases may be considered again in the appeals process. A mediation settlement may be enforced in the same way as a determination of the appeals officer. As a last resort, where a determination of the appeals officer is not implemented, section 22 allows for an application to the Circuit Court for an enforcement notice against the HSE or education service provider which has failed to implement it. Certain recommendations of the complaints officer may also be enforced in this way.

Section 25 imposes a duty on public bodies to commence a rolling programme of refurbishment to make public buildings accessible. Sections 26 to 29, inclusive, are key sections which require public bodies to mainstream service provision for people with disabilities. Section 30 deals with codes of practice to be prepared by the NDA. Sections 31 to 37, inclusive, require the development of six sectoral plans by the Ministers for Health and Children, Social and Family Affairs, Transport, the Environment, Heritage and Local Government, Communications, Marine and Natural Resources and Enterprise, Trade and Employment. A duty is placed on the Minister responsible for each of the sectors to prepare, in accordance with a general framework, a plan setting out the disability related services and positive action measures he or she is committed to implementing.

Draft sectoral plans have already been published and are at present the subject of a consultation process being facilitated by the NDA at regional information meetings. The final plans will be submitted to the Oireachtas for approval within one year of commencement of the legislation. Under section 38, individuals can make complaints about a failure by a public body to comply with a duty in respect of mainstream service provision under Part 3.

Section 39 requires every public body to designate inquiry officers to investigate any such complaints. Sectoral plans will also specify the complaints procedures that apply in each of the six plans. The decision of the inquiry officer or the complaints officer under a sectoral plan can be referred to the Ombudsman. Section 40 amends the Ombudsman Act 1980 to give the Ombudsman specific powers for this purpose.

Part 4 seeks to safeguard access to employment, insurance and mortgages for people who may be affected by certain genetic conditions, such as cystic fibrosis and Huntington's disease. The part restricts the use of genetic data in general, especially for employment purposes and outlaws its use for insurance purposes. The use of family history information for insurance purposes may be restricted by regulation. The provisions of this part will be subject to review commencing not later than 1 January 2014.

Part 5 establishes a statutory basis for positive action measures to support the employment of people with disabilities in the public service. It allows each Minister to specify targets for the employment of people with disabilities in their sector, pending the specification of which, the existing 3% employment target will apply. Implementation of the measures will be monitored by sectoral monitoring committees and the National Disability Authority will report to each Minister about compliance in their sector.

Part 6 provides for the establishment of a new centre of excellence in universal design within the NDA. The establishment of the centre is a commitment in the programme for Government and responds to international obligations on universal design and e-accessibility. Section 52 amends the National Disability Authority Act 1999 to take account of its new role. Universal design relates to the design and composition of buildings, products and systems so that they can be accessed by everyone, to the greatest extent practicable, irrespective of any particular physical or mental feature, ability or disability. The purpose of the centre will be to achieve excellence in universal design through the development and promulgation of standards. The centre will have a particular role in pursuing this objective regarding electronic systems and in the promotion of universal design in courses of training for architects, engineers and other persons who design and build the built environment. Part 7 deals with a range of issues including rules for broadcasting to facilitate access by people with sensory impairments, offences, changes to the size of the NDA board and related matters, repeals and exclusions.

The Schedule sets out the terms and conditions of employment of the appeals officer to be appointed by the Minister for Health and Children under Part 2. It deals with such matters as selection by open competitive process, term of appointment, staff to be civil servants, accounting matters and delegation of functions.

I thank the Senators present for their attention. The debate in the Dáil was very informed with many good points made by the Opposition. On Committee Stage we incorporated many of those points. One common theme clearly running through much of the Opposition contribution was the need for judiciable rights. In the five years since this process commenced the Government has been clear and adamant that it is not possible to have legislation giving judiciable rights in the courts. As I have already said judiciable rights are not available in any country with the one possible exception of South Africa. This will not change during the debate in the Seanad.

I appeal to Senators to recognise that we have gone past the debate on judiciable rights. I am anxious to listen carefully to the points made here and to make amendments where possible as a result of proposals made. I would like to conduct the debate in the Seanad in that spirit. As a former Member of this House, I recognise the important role the Seanad has to play and the important contribution Members of this House have made in improving legislation. I again emphasise that I am anxious to conduce the debate in that spirit. I commend the Bill to the House.