Brendan Ryan (Labour)

I move amendment No. 14:

In page 19, subsection (2), line 37, after "then" to insert:

"the Executive shall make a decision to that effect, and shall notify the person to whom the payment was made (or his or her estate) of that decision, and the person or his or her estate may appeal to a person appointed under section 16(3) in respect of such decision within 14 days, (on grounds to be specified in a notice of appeal, which may include the ground that a genuine mistake occurred) and in default of appeal, or on the dismissal of such appeal, thereupon".

I should not bother because only the Government will end up in a mess over this. A private body — this secret agency with its undefined budget about which we will know in two days time — can discover, after the process has been completed, that it overpaid a person. It can contact the HSE, which can write to an elderly person in a hospital bed and say it overpaid that person and that he or she must pay the money back immediately. There is no appeal and no need for the HSE to explain the reason.

Cases such as this will go to court. An elderly person would need to go to court to challenge an administrative decision. If one wanted to invite serious constitutional questions about fairness and natural justice, one could not do so better than through section 17. I do not care what advice the Attorney General gave. I have found over the years here that what one regards as reasonable is a good way to judge the way the courts operate. If a private agency of the HSE decides a person is guilty of fraud, notifies the HSE, and the HSE contacts the person and requests the defrauded money be repaid, the scale of the money being repaid to people will be minuscule compared with the scale of what the Government will have to pay in defamation damages.

Our amendment suggests that where the private operator concludes that there has been fraud, misrepresentation or an overpayment, a simple appeals process using the appeals mechanism already present under section 16(3), would deal with many legitimate questions of natural justice. It is incomprehensible that the Parliamentary Counsel would suggest that a private organisation can decide it made a mistake and can, without apology, delay or explanation, demand it back on the spot. There is no delay, appeal or requirement to explain.

The Department of Social and Family Affairs would no longer try that, but would implement a process of appeals. However, in this case there is no appeal. It is distasteful that section 17 refers to fraud and misrepresentation, which are legitimate concerns, and overpayment, which is a mistake on the part of the paying agents. To put them in the same clause is nasty because it ties up fraud and misrepresentation by individuals with errors on the part of an agency and handles the three using the same process. That is not nice in a Bill that is meant to repair damage done by the State over 25 or 30 years.

I move the amendment that there will be an administrative appeals system where there is a suggestion of fraud or misrepresentation or where there is an error.