Chapter 6 - Procurement and Management of Contracts for Direct Provision

Mr. Noel Waters (Secretary General, Department of Justice and Equality) called and examined.

We are dealing with the 2015 Appropriation Accounts for the Department of Justice and Equality, Vote 24 and Chapter 6 of the Annual Report of the Comptroller and Auditor General. From the Department of Justice and Equality, we are joined by Mr. Noel Waters, Secretary General, Ms Oonagh McPhillips, Mr. Jimmy Martin, Mr. John O'Callaghan, Mr. Seamus Clifford, Mr. Ben Ryan, Mr. Eugene Banks and Ms Bernadette Phelan. We are also joined by the Comptroller and Auditor General, Mr. Seamus McCarthy. From the Department of Public Expenditure and Reform, we are joined by Mr. John Burke.

I remind members, witnesses and those in the Public Gallery to turn off their mobile phones.

I wish to advise the witnesses that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to this committee. If they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of that evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity either by name or in such a way as to make him, her or it identifiable.

Members of the committee are reminded of the provisions of Standing Order 186 to the effect that the committee shall refrain from inquiring into the merits of a policy or policies of the Government or a Minister of the Government or the merits of the objectives of such policies. Finally, members are reminded of the long-standing ruling of the Chair to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

Before I call the Comptroller and Auditor General, for the information of members of the public, I will immediately suspend the meeting following the opening statements because there is a joint sitting of the Houses of the Oireachtas to hear a statement from Mr. Michel Barnier. We will resume at 2 p.m. I will take the opening statements only.

Mr. Seamus McCarthy

Vote 24 - Justice and Equality is one of eight that make up the justice group of Votes.  The others are the Votes for the Prison Service, An Garda Síochána, the Courts Service, the Property Registration Authority, the Irish Human Rights and Equality Commission, the Valuation Office and, beginning in 2016, the Policing Authority.

The 2015 Appropriation Account for Vote 24 - Justice and Equality recorded gross expenditure of just over €366 million in 2015 across six spending programmes, as indicated in the figure on screen. Members can see that programmes A, B, and C account for the bulk of the expenditure. Expenditure of €152 million on the programme to Maintain a Secure Ireland includes expenditure on the Irish Naturalisation and Immigration Service totalling €47 million and on asylum seekers accommodation of €57 million.  The latter expenditure is the focus of the report being considered this morning, on which I will comment shortly.

Spending related to the operations of the Probation Service accounted for €35.5 million of the €51 million of spending under programme B, Work for Safer Communities.

Expenditure on legal aid services accounts for €86 million, or 69%, of the programme on Facilitating the Provision and Administration of Justice.  A further €10 million was spent on the Forensic Science Laboratory and the State Pathology Service. This programme also provided for expenditure of over €10 million on commissions and inquiries, details of which are set out in note 6.3 to the account.  The committee may also wish to note spending under this programme of €5.45 million in respect of the Magdalen fund, as against a funding provision for the year of €11.5 million.

Across the Vote, salaries accounted for 35% of the expenditure. At year end 2015, a total of 2,233 full-time equivalent staff were employed in the Department and the other offices funded from the Vote.

On the receipts side, appropriations-in-aid totalled just over €64 million.  Over 70% of this related to a range of fees charged in respect of immigration registration, nationality and citizenship certification, and visa issuance.

I will now turn to the report before the committee. Since 2000, the State has met its obligation to provide for the material needs of asylum seekers while their applications are being processed by offering accommodation and food at what are known as direct provision centres.  In addition, residents of direct provision centres are entitled to a small weekly allowance paid by the Department of Social Protection and to avail of health and education services funded by the relevant Votes.

The report before the committee this morning examines the procurement and management of contracts for direct provision centres.  As of December 2015, there was a total of 35 direct provision centres in operation - seven State-owned centres and 28 centres provided by 22 commercial suppliers.  Almost 4,700 individuals were being accommodated in the centres at the year end.  The Department also operates two emergency reception and orientation centres to cater for persons who already have refugee status. The total cost to the Department in 2015 of providing accommodation and related services to asylum seekers and refugees was €57 million.

The level of accommodation required is demand-led and difficult to predict.  It is influenced by the number of asylum seekers, their length of stay in direct provision and, because there is no obligation to avail of direct provision, the number who opt to do so.

The report notes that in mid-2016, the average length of stay was 38 months with 450 residents, or 10% of the total, living in direct provision for more than seven years.  Some  23% of residents, or 950 people, continued to reside in direct provision even though their cases had been finalised.  This included 667 people or 16% who had been granted a status permitting them to remain in Ireland, and 283 or 7% who were subject to deportation orders.

Two commercial companies were contracted to provide services such as catering, cleaning and maintenance at the seven State-owned centres.  We found that competitive processes had been used to procure those services.

In contrast, the Department had not used competitive processes as set out in public procurement procedures to procure the 28 commercially-owned and run centres.  Instead, it seeks expressions of interest, evaluates the responses and then agrees contract terms with selected providers.  The Department’s view is that this equates to the negotiated procedure provided for in EU procurement rules. However, use of that procedure is only permitted in certain limited circumstances that we could not see existed in regard to direct provision. The Department stated that it discussed the matter with the Office of Government Procurement but had not identified a procurement method to replace the current procedure.

The examination also found that effective management of contracts was made more difficult because not all contract deliverables had been expressed in a way that could be quantified or measured.  This increased the risk that standards of accommodation and services would not meet asylum seekers' needs or would be inconsistent between centres.  In addition, contracts did not set performance measures and there was limited provision for penalties for underperformance by suppliers.  The Department agreed to the report's recommendation to review the standard contract, and the Accounting Officer will be able to update the committee in that regard.

Service delivery in the centres is monitored by physical inspections of premises, information clinics for residents of centres and reviews of complaints by residents.  However, the findings from this monitoring are not collated and used to assess service delivery performance.  The Department committed to introduce procedures to formally record such inspection findings and complaints, which should inform discussions with centre managers and owners.

Even though there was a low level of complaints by residents, information from other sources suggests that there is a significant level of dissatisfaction among residents about the quality of the accommodation, the services provided, or both. A revised complaints procedure introduced in 2015 provided for an appeal to an independent appeals officer where a person was not satisfied with how his or her complaint was dealt with. However, at the time of the examination, an independent appeals officer had yet to be appointed.

The report recommended that the Department review the complaints process to identify reasons why residents may not be raising issues. The Department noted that the revised complaints procedure largely addressed this issue but undertook to examine ways to make the complaints process more open and transparent. Members may also be aware that, from early April this year, residents of direct provision can now bring a complaint to the Ombudsman, or to the Ombudsman for Children, if they are unhappy with how their original complaint was dealt with.

Mr. Noel Waters

The justice and equality Vote covers a wide remit, encompassing both the administrative divisions of the Department and a broad range of offices and agencies across the justice sector. In all, there are over 60 individual subheads across six expenditure programmes. These reflect the work of policy areas dealing with everything from crime to land registry, reform of criminal and civil law, and an increasing number of regulatory bodies and front-line services in areas such as the immigration service and Forensic Science Ireland. From 2016 onwards, the programme approach reflects the high-level goals in the Department’s current strategy statement. Other structural changes since the appropriation account for 2015 relate to the establishment of the Policing Authority as a separate Vote and, following a transfer of functions, the Department has now assumed responsibility for Ordnance Survey Ireland from the Department of Communications, Climate Action and Environment.

In the briefing provided to members, I outlined that legal proceedings regarding the use of an office premises in Wolfe Tone Street, Dublin 1 by a community-based project funded by the Probation Service had concluded in late 2016. This will be fully reflected in the appropriation account for 2016 and it was previously the subject of a report by the Comptroller and Auditor General in 2012, in the 2011 report. The central issue in this case was the assurance provided by the vendor about planning permission for the premises. The Comptroller and Auditor General outlined that it was reasonable for the Department to rely on the legal advice provided about the planning permission. Following legal advice, a settlement of €1.8 million was agreed and paid by the Department during 2016. Although we are dealing with 2015 today, I mention this matter because the committee had previously inquired about it.

Turning specifically to the Comptroller and Auditor General’s report on contracts for direct provision, I want to outline briefly the reason this system exists. I also want to give committee members an update on some developments in the system in recent years, in particular since the 2015 report.

Services for all protection applicants, whether living in State-provided accommodation or in commercially-provided accommodation, are delivered under the Government policy of direct provision and dispersal which dates from 2000 when the then health boards, which were responsible for homeless services, found themselves unable to cope with the dramatic increase in the number of people seeking asylum in Ireland. There are obviously many parallels with the homeless issue that exists now. By May 2000, some 1,500 applicants were being provided with accommodation and full board by the Government. Members may recall that, 12 months later, this had increased to 4,200 and by May 2005 it had grown to 7,200. From 2000 to date, some 60,000 people have been accommodated in direct provision. Equally, they have been provided with full access to the State’s medical and education services. The system is not perfect by any means and we are continually seeking to improve it. The reality is that had the State not adopted the direct provision system, there simply would not have been even the most basic shelter available for this group of people who arrived and continue to arrive in our country.

At the start of this year, 4,465 persons were living in this accommodation. However, I am glad to say - this is a significant change - that, of those, 72% have been there for three years or less since the date of their application. This compares to 36% who were there for three years or less when the data was compiled for the working group on direct provision and related matters in 2015. To put it another way, there has been a complete reversal in the length of stay figures since the working group examined the matter.

Full board accommodation in keeping with the policy of nationwide dispersal is offered to residents while their application for protection is being processed. It is important to note that not every person who seeks international protection in Ireland chooses to accept the offer of full board accommodation and many choose to live with family or friends in communities across the country, as they are entitled to do. If this system was not in place, already vulnerable people who have sought protection in the State would join the lengthy waiting lists for social housing or enter the private rental market with little hope of finding affordable and secure accommodation. This is the very situation that obtained which gave rise to the direct provision system being put in place in the first place. The offer of State-provided accommodation is a guarantee that every person who walks into the international protection office today will, tonight, have a bed, full board and access to medical care. Moreover, those people's children will have access to our first and second level education system on the same basis as anyone else.

No system is without room for improvement and our challenge is to continually enhance and develop the entire system so that the best possible set of facilities and services can be provided to those in our care. To that end, we are working to implement the recommendations of the McMahon report. Some 121 of these recommendations have been implemented, with a further 38 recommendations partially implemented or in progress. In total, 92% of the 173 recommendations are implemented, partially implemented or in progress. Recommendations that involve structural changes or improvements will be implemented as quickly as possible, having regard to fire safety, building regulation and planning issues and some others are policy matters for other Departments.

I mentioned earlier that good progress is being made in reducing the length of time applicants are in direct provision while having their claims finalised. What we believe is a further major turning point in addressing the length of time issue is the coming into force of the International Protection Act at the end of last year. This Act, with its single application procedure at its core, has ended the inefficient sequential Refugee Act 1996 application process with its inherent structural problems. It brings us into line with the processing arrangements for protection applicants in all other EU member states. In truth, that process was, by its very nature, a major underlying factor in causing significant delays in deciding cases. That, in turn, was causing major delays in moving applicants on from direct provision centres, either as recognised refugees or with other forms of permission to live in the State or as applicants which were refused and were no longer permitted to remain in the State. The clear ambition now with the new Act when it is fully embedded is that we expect cases to be dealt with in finality much sooner. Indeed, some cases have already been finalised since the beginning of the year.

Arising from the McMahon report and the programme for Government commitments in 2016, a number of physical improvements to accommodation are being implemented, for example, the introduction last January of new home cooking arrangements at the Mosney accommodation centre. Each family is now able to acquire fresh food so that they can prepare their own meals. Cooking facilities are being introduced in other centres including the State-owned centres in Killarney, Tralee, Athlone, Knockalisheen in Limerick and Kinsale Road in Cork, and in Ballyhaunis, Millstreet, St. Patrick’s in Monaghan and any other centres where families are living. From 3 April last year, as the Comptroller and Auditor General noted, the remit of the Ombudsman and the Ombudsman for Children has been extended to cover those who are living in State-provided accommodation.

The Department has also co-ordinated the preparation of a comprehensive information booklet for persons who have been granted any type of leave to remain in the State. The booklet contains practical information for residents across housing, finance, health care and education as well as public transport and other related matters and has been prepared with the assistance of the National Adult Literacy Agency to ensure that it is presented in plain English. The booklet has also been translated into a number of languages. In addition, a number of NGOs have been awarded grants under the EU asylum, migration and integration fund, specifically to provide assistance to persons who have been granted protection and who are now in a position to move out of State-provided accommodation. Notwithstanding the current housing crisis, we are working with residents and the NGO community to assist people, when they get permission to remain, to find mainstream housing as soon as possible and ensure that the State-provided accommodation remains available for those in most need.

Direct provision, which has elements common to it in the reception systems in place in other EU member states, has many critics. Most criticism centres around the inordinate length of time people have remained in it while waiting for their protection claims to be finalised. As I said, we are addressing that across a number of fronts as we are the other quality of life issues. There are no cheaper alternatives to direct provision. We have explored the options in this respect; in fact, they are much more expensive, and in any event, given the critical shortage of housing in the State, they are not realistic. Nevertheless, we remain open to any workable proposals which would drive down costs while maintaining standards and fulfilling the requirements of public policy of balanced nationwide dispersal, direct provision of accommodation-related services and access to education, health, welfare and so forth on the same basis as the general community.

I thank Mr. Waters for the opening statement. As I indicated, there is a joint sitting of the Oireachtas in the next few minutes so the meeting is now suspended and we will resume at 2 o'clock.

Sitting suspended at 11.20 a.m. and resumed at 2.08 p.m.