Amendment No. 3 arises out of Committee proceedings. It has already been discussed with amendment No. 1.
Health (Repayment Scheme) Bill 2006: Report Stage (Resumed) and Final Stage.
I move amendment No. 3:
In page 6, line 5, after "person" to insert the following: "and in relation to the functions imposed under this Act on the Executive in respect of the Fund".
This amendment will allow the Health Service Executive to enter into an arrangement with an agency to administer the donation fund on its behalf. The HSE may employ a fund manager to oversee investment of the fund.
I move amendment No. 4:
In page 9, between lines 5 and 6, to insert the following:
8. Without prejudice to the generality of section 7—
(a) a determination as to a person’s eligibility for a repayment of recoverable health charges shall be made as soon as is reasonably possible and in each case no later than—
(i) 28 days after an application has been lodged, or
(ii) the commencement of this Act, whichever is the later, and
(b) once a determination has been made as to a person’s eligibility for a repayment of recoverable health charges, such a payment shall be made as soon as is reasonably possible and in each case no later than 28 days after such a determination has been made.
The amendment relates to the period of 28 days following an application being lodged within which a payment would accrue to the person making the claim. This issue arose almost a year and eight months ago. Legislation was introduced to ratify the deduction.
It will be almost two years since Deputy Perry exposed this issue before any payment will accrue to the residents of public nursing homes. As a result of the delay many of the people who were eligible for payments have passed on. The average time a person spends in a nursing home is two to three years. Is it the case that 30% to 40% of those who were entitled to refunds when this issue first came into the public domain have passed on? Will the Minister of State outline in his reply when payments will commence? At one stage it was indicated that payments would commence in August of this year. Will the Minister please clarify the position?
The aim of the amendment is to ensure a person will get his or her repayment within 28 days of an application being lodged. Procrastination has been the hallmark of the introduction of this Bill to facilitate repayments to those in long-stay nursing homes, including people in psychiatric hospitals and those with intellectual disabilities who are in institutions. By August, it will be almost two years from the day when Deputies Perry and Kenny exposed the illegal charges levied on very vulnerable people. We ask the Minister of State to accept that payment should be made 28 days after lodging the application.
l do not accept this amendment because it places a deadline on the period for determining eligibility under the scheme and there may be a delay in certain cases in determining eligibility where an applicant had not applied for a medical card but who fell within the income-means threshold for a medical card.
The scope of the scheme will apply to fully eligible people, that is, medical card holders and those over 70, with effect from July 2001. To ensure that repayments are made in an equitable manner, those who do not have a medical card on admission to long-stay care but who fall within the income-means threshold for a medical card will be regarded as having full eligibility for the purpose of the scheme. This will include those in publicly funded long-stay care, patients in public contracted beds in private nursing homes and patients in receipt of inpatient services in community settings.
The Department has been in contact with the Department of Social and Family Affairs to assist in the determination of eligibility by virtue of being in receipt of the non-contributory old age pension and has offered its assistance in this regard. I do not accept this amendment which proposes repayment within 28 days of determination of a person's eligibility because it is not proposed to include a deadline for making repayments, given the extended period of time during which some patients may have been in care and the significant numbers of records that may need to be checked in certain cases.
However, repayments will be made as promptly as possible following receipt of an application. No deadline has been included in this provision as some applications will take longer than 28 days to process, depending on the complexity of the application and whether accurate records are available. An applicant will also be given an appropriate timeframe to appeal the determination of money to be repaid. Applications will be processed as quickly as possible, having regard to the individual circumstances pertaining to each application. The uppermost consideration will be to ensure that the relevant person receives the full amount of repayment due.
The Act contains a provision that ensures that repayments to living persons are prioritised over the repayments to estates. We acknowledge the role played by Deputy Perry and that, as an Opposition figure, he behaved very responsibly in this regard. Following the Supreme Court decision, we gave certain commitments and produced deadlines in good faith. On Second Stage, I clearly explained the reason for the delay in bringing forward the legislation. Apart from introducing the most expensive repayment scheme ever seen in this country, in general terms, we are paying money to people who are very vulnerable. Therefore, we must ensure proper safeguards are in place to guarantee the money is paid to the people who deserve it and that it is not abused and does not enter other hands. A considerable amount of communication took place and many matters needed to be resolved before we could produce the legislation.
From our perspective, the legislation cannot be introduced quickly enough. Once we publish the legislation, we are anxious to get it through the Houses as quickly as possible. I indicated that the decision to appoint an outside company will go before the board of the Health Service Executive on 1 June 2006 and that the repayment process will begin in July 2006. We have provided €400 million in the 2006 Estimates to kick-start the repayment process and if more money is required, we will provide it. There is no saving from our perspective. I have been asked whether the percentage of people entitled to repayments is 30% or 40%. I do not know for certain but I would be surprised if the figure was that high. Naturally, some of the people in question will have died but their estates will be entitled to apply for repayment, so from our perspective, the sum of money that was due 12 months ago has not changed. There will be no delays on our side in respect of repaying the money.
The request for 28 days is unnecessary. Some complications will arise. For example, certain individuals could become ill or be forced to be absent for a week or two, which could delay repayment. There will certainly be no delay. The contract into which the HSE is entering with the outside company will last two years. It is not in our interests to delay repayments. We are happy to see them processed as quickly as possible.
Having listened to the Minister of State, I am slightly disappointed that he has not been more proactive in respect of this amendment. I acknowledge that difficulties can arise. If the Minister stated that the policy of his Department was to ensure as far as practicable that all applications would be submitted within 28 days, it might go some way towards demonstrating that the Department is serious about this issue.
We have been waiting for over a year for the documentation to which the Minister of State refers. Notwithstanding this, departmental officials are well aware of the vast majority of people who are entitled to repayments. The Minister of State argues that he will pass all this documentation to the new body that is being established. This harks back to the other aspect to which I referred earlier in the debate when I stated that this should have been done on an in-house basis. Has work been carried out in respect of breaking down the categories of people to see whether the necessary documentation has been submitted or are we waiting for this new body, which was pushed through earlier to finalise and issue repayments, to begin to examine all the documentation?
One of the merits of having the public sector deal with this issue is that it could have been dealing with it for the past year and finalising everything. Therefore, when the scheme is introduced, the system could be ready to make repayments within 14 days rather than 28 days. Some commitment must be given in respect of ensuring this takes place. It is not good enough for the Government to simply say that it will do its best but that certain individuals may be off work sick. If this happens, we must realise that we are dealing with people who could be dead tomorrow. If a dateline was issued, it would make the senior personnel involved, who will be well paid to carry out this work, prioritise it and get applications within a certain date. This is the merit of amendment No. 4, which will ensure that applications are prioritised. If the Government is not prepared to go down this road — it appears that the Minister of State is not willing to do so — the least he can do is give a commitment in principle that every effort will be made to ensure it is done within 28 days, as referred to in the amendment.
What is the position regarding medical card holders who were unable to secure a place in a public nursing home and, as I noted on Second Stage, whose relations may have been obliged to obtain a loan from a credit union or other financial institution to maintain them in a nursing home? Are there proposals to look after these people? Under the Constitution, they are entitled to care, not only in a public hospital, but in long-term care facilities. They were denied this entitlement because no beds were available and they consequently needed to pay for care. Will the Minister of State examine the category of people who must make this effort?
Two points must be addressed. A number of consultations between the Departments of Health and Children, Finance and Social and Family Affairs, the Health Service Executive, the Office of the Attorney General, the Revenue Commissioners, the probate office of the High Court, the Courts Service, the Office of the Wards of Court and the Office of the Ombudsman needed to take place before we could publish the legislation. The purpose of the talks was to ensure the provisions of the scheme adequately addressed all the issues, many of which have been mentioned in the House.
Will the Minister of State——
Allow the Minister of State to continue.
Regarding the 28 days, there is no desire——
Where were the representatives of older people?
——on the part of anyone in the Department of Health and Children to unnecessarily delay these payments. However, if we were to include a 28-day time limit in legislation, it would place significant constraints on all parties involved. It is unnecessary and could have legal implications.
If a particular person who was dealing with the file was laid up at home for a couple of days, the money could be paid in 29 days instead of 28 days. This amendment would leave one open to having a case taken against one. We have provided the money and are trying to push the legislation through as quickly as possible.
Our experience is that the time limit is necessary. A year and eight months has passed since it was determined that money was illegally deducted from people in long-stay nursing homes and institutions. We are asking that a determination of a person's eligibility is made as soon as reasonably possible after an application has been received but no later than 28 days. If the Minister of State were to read the amendment, he would see that we are giving the Government 28 days. The amendment would also require payments to be made within a further 28 days.
We want to give a strong signal. Delays have occurred and people who were eligible for payments when this issue was exposed have since died. The tardiness of and approach by the Government to this matter from the outset does not instil us with confidence that payments will be made as quickly as possible. There is concern that the attitude will be one of how to refuse payment rather than how to facilitate it. This negative attitude would lead to long delays in payments, which would result in stress among the elderly, who may not fully comprehend what is happening but know that money is coming to them, and stress on the families of people in institutions who must answer those family members' questions about what happened. Two 28-day periods is not an unreasonable time within which to make payments. We do not trust the Government to do it.
The Government would have at least 56 days.
Whether the Deputy trusts me, we should wait to determine how the scheme operates. We will just see——
I could stand on my head——
Does the Minister of State really want us to wait and see?
If Deputies give me the chance, I will explain.
Is giving the scheme a chance the best information the Minister of State could get from his officials?
That is not fair.
I would be quite happy to deal with the Deputy's amendments.
Deputy Seán Ryan can wait until the next election when he will be able to say what he wants.
I clearly explained our efforts to try to make the scheme as simple as possible so that people can get their money without requiring recourse to legal assistance or incurring the expenses involved therein.
The system will operate in such a way that once an application has been processed and an agreement reached on the amount of money due, the person in question will be notified. He or she will have 28 days to appeal the decision if he or she feels short-changed.
The Government is imposing a limit on them but does not want one for itself.
For a change, the Deputy should listen to me. The person has 28 days to appeal the decision. If no appeal is made within that time, the cheque will issue immediately. We cannot be more straightforward.
The Minister of State should reconsider this matter when the Bill is before the Seanad and make firmer commitments. Dragging out the affair will induce stress among people who are at a certain stage of their lives and families who must react to the people owed money.
This money rightfully belongs to the residents of the homes, not the Government. I accept that the Government will allocate €400 million this year, but it is not the Government's money. It was illegally deducted from the residents and the Minister of State should put a time limit on its repayment.
- Boyle, Dan.
- Breen, Pat.
- Broughan, Thomas P.
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- Burton, Joan.
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- Connolly, Paudge.
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- Crawford, Seymour.
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I move amendment No. 5:
In page 12, line 19, after "establish" to insert "and manage".
The purpose of this amendment is to allow the Health Service Executive manage the donation fund.
I move amendment No. 6:
In page 12, line 21, to delete "towards the provision of" and substitute "by the Executive for the purposes of providing".
I move amendment No. 7:
In page 12, line 27, to delete "An" and substitute "If the Fund is established, an".
I move amendment No. 8:
In page 12, to delete lines 36 and 37 and substitute the following:
"(b) such other moneys that are accepted under subsection (11), constitute the proceeds of the sale or other disposal of land or other property accepted under that subsection, or constitute income received on, or the proceeds of the sale or other disposal of, investments made pursuant to subsection (12).”.
This amendment is to allow the fund accept donations of property as well as of money. Income derived from investments shall also be placed in the fund.
I move amendment No. 9:
In page 13, between lines 9 and 10, to insert the following:
"(9) The Fund shall consist of such accounts as the Minister, after consultation with the Minister for Finance, determines.
(10) Subject to section 18 in so far as that section relates to the Fund, the Executive shall keep the accounts of the Fund.
(11) The Executive may accept a gift of moneys, land or other property—
(a) if the gift is made for the benefit of the Fund,
(b) if the trusts and conditions attached to the gift are not inconsistent with the purposes referred to in subsection (1) or with paragraph (c), and
(c) if, in the case of land or other property, the Executive may, at its discretion, realise the value of the gift for the benefit of the Fund.
(12) The Executive may invest moneys standing to the credit of the Fund (other than such moneys for the time being required for the purpose of making payments out of the Fund pursuant to subsection (1)) with such financial institutions as are authorised by the Irish Financial Services Regulatory Authority established by section 33B of the Central Bank and Financial Services Authority of Ireland Act 2003.”.
This amendment addresses a number of issues raised by Deputy Twomey on Committee Stage regarding the donation fund.
I move amendment No. 10:
In page 13, between lines 9 and 10, to insert the following:
"(9) (a) Under no circumstances, shall the Fund or any moneys contained therein or donated thereto, be used in lieu of expenditure that would otherwise have been allocated by the Minister for Finance, or any other Minister, for such functions as are outlined in subsection (1).
(b) Any moneys provided for such functions as are outlined in subsection (1) shall be additional to the ordinary expenditure that would otherwise have been allocated by the Minister for Finance, or any other Minister, for those functions.”.
I move amendment No. 11:
In page 14, line 31, after "repayments" to insert the following:
"and to the Executive's establishment and management of the Fund, if any".
Amendment No. 12 is in the name of the Minister. Amendment No. 13 is related and may be taken with amendment No. 12.
I move amendment No. 12:
In page 16, line 30, to delete "A" and substitute "An aggrieved".
This amendment addresses the issue raised by Deputy McManus on Committee Stage in regard to appeals. Legal advice received from the Attorney General is that no person who is not a party to a decision can appeal a decision made against that party without special permission. This is clear from the rules of the superior courts where no person not a party to a judgment can appeal against it unless the court, under special application for exceptional reasons, allows one to do so. The court is clear that no person has a right to be joined to an appeal without special permission of the court hearing the appeal. To minimise any confusion that may arise regarding this matter, the term "aggrieved person" is being used to indicate that only an affected person can appeal against the decision.
I thank the Minister of State for that clarification. We do not fully accept it but on the basis of what he has just outlined it is unlikely he will change his mind about the points made on Second and Committee Stages.
I move amendment No. 13:
In page 18, between lines 35 and 36, to insert the following:
"(16) In subsection (1), “aggrieved person”—
(a) in the case of any decision referred to in that subsection, means the applicant to whom the decision relates,
(b) in the case of a decision referred to in paragraph (b) of that subsection, includes the Executive if the Executive is not the scheme administrator.”.
May I speak on amendment No. 13?
It has already been discussed but the Deputy may make a brief contribution.
Amendment No. 13 arose from a suggestion put forward by Deputy McManus. We accepted amendment No. 12 but there is a different definition in amendment No. 13. We made the point that it was heavy-handed to have an elaborate appeals system for claims but no right of appeal against demand for repayments where the contractor is satisfied that there has been misrepresentation. In fairness to the Minister, he indicated on Committee Stage that he was prepared to examine that aspect and in the spirit of that commitment the Labour Party accepted his point and did not submit an amendment because we felt his would be positive. From the evidence I have seen and the advice I have got, however, the Minister has got this completely wrong.
The Deputy is referring to amendment No. 14.
My apologies. On amendment No. 13, we believe it should have been examined somewhat differently. We are not satisfied with this aspect but given that it is linked to amendment No. 12 I will accept what the Minister is saying.
Amendment No. 14 is in the name of the Minister. Amendments Nos. 15 and 16 are related and therefore amendments Nos. 14 to 16, inclusive, may be discussed together.
I move amendment No. 14:
In page 18, line 36, to delete "the scheme administrator is satisfied" and substitute:
"it comes to the knowledge of the scheme administrator".
This amendment addresses a concern raised by Deputy McManus regarding the Health Service Executive determining whether a case of fraud has occurred without recourse to the courts. Under the Irish Constitution, only a court is empowered to determine a question of fraud. Where the HSE believes there has been fraud, it can claim that such fraud has occurred but only a court can decide whether there has been any fraud. The amendment is to reduce any confusion on this issue. The proposed procedure in possible cases of fraud is that the scheme administrator would bring any concerns it may have regarding fraud to the attention of the Health Service Executive. The executive may then, having investigated the matter, bring a claim alleging fraud and ask the applicant for an amount determined due to the executive. The applicant has the option of returning the outstanding money, or the executive may seek the recovery of the money through the courts.
This is an aspect of the Bill which Deputy McManus felt very strongly about. She felt it could be dealt with in another manner. The amendment, as far as we are concerned, does not deal with the issue and is not a proper definition. It may well lead to problems down the line with regard to misrepresentation. Be that as it may, if the Minister of State is not prepared to come forward with a stronger amendment, there is not much we can do as members of the Opposition. I would like to hear the comments of the Minister of State on the issue. Will he give further consideration to what I have said?
While we have a duty to repay the money, if the Health Service Executive discovered that money had been fraudulently claimed, we also have a duty to make every effort to ensure it would be repaid. The system is similar to other appeal systems, where the relevant person would be notified if money may have been claimed and paid out under false pretences.
We would indicate that it had come to our attention that the person received money which he or she did not deserve. The normal procedure would be that they are asked to repay the money. We would hope that dialogue would be opened between the parties, and in the event of money not being paid, we could resort to the courts if required.
We are discussing the money not being paid. This is linked with an amendment I spoke on previously, and on which nobody seems to want to answer. On the one hand there are fraudulent payments, but I put it to the Minister of State that the State owes money to medical card holders who could not get into public nursing homes. I have asked the question time and again.
An elderly person who is entitled to care and attention, not only in a public hospital but in a public nursing home, may not have been able to get into such a facility. They would have had to borrow, along with their family, to get into nursing home facilities, the provision of which they should have been entitled to by the State. Those people are entitled to a repayment by the State. I have asked time and again what will be done on this issue. What will the State do for these people, who are entitled to a refund which is not being provided?
The Minister of State has talked about fraud, but the State is defrauding these people in not paying. I would like the Minister of State to indicate whether these people will be repaid, as they are entitled to be.
It is in response to the Supreme Court decision that we have this Bill before us. A particular group of people were wrongly charged, and we are paying back money to those people. What we are putting in place is legislation to pay such people, with a safeguard provision in the event of people receiving money under false pretences. We would have a mechanism in place to reclaim money for the State in that case. Nobody in their right mind could object to us putting such a system in place. The matter raised by the Deputy is separate.
The Department has failed to answer on it at any stage. People are entitled to health care.
It was not raised on Committee Stage.
It is not relevant to what is being discussed today.
It may not be relevant but the Department will not give an answer on it.
The Deputy is talking about people who are not entitled to——
They have an entitlement, but they are not covered in this Bill.
The Deputy can rant and rave as much as he likes. The Supreme Court made a decision and the legislation has come about on foot of that. It was quite clear about the people who were illegally charged, and they are the people to whom we are repaying the money.
I move amendment No. 15:
In page 18, lines 43 and 44, to delete all words from and including "and" in line 43 down to and including "satisfied" in line 44.
I move amendment No. 16:
In page 18, line 45, to delete "the Executive is satisfied" and substitute "it comes to the knowledge of the Executive".
I move amendment No. 17:
In page 19, to delete line 17 and substitute the following:
"(d) the Fund, if any,”.