Dáil Éireann debate -
Thursday, 19 Jan 2017

Vol. 935 No. 2

Leaders' Questions

Deputy Anne Rabbitte

As the Tánaiste is aware, one of the many costs facing families is child care. Many choose to have au pairs to help them in that regard, normally as part of a cultural exchange. There are up to 20,000 au pairs in Ireland and some Deputies have undoubtedly used them at some point. Most au pairs have a great experience in the six to 12 months that they spend in this country, but there is no regulation or legal definition of au pairs. This allows them to be open to exploitation, which is condemned by all sides of the House.

There have been a series of Workplace Relations Commission, WRC, rulings in the past 12 months. As reported in today's newspapers, it found as recently as yesterday that €2,300 had to be paid to an au pair who had not been paid the minimum wage or for three Sundays. Last June, Fianna Fáil introduced a Bill, which the Government decided not to support for various reasons, to discuss the definition of "au pair" and bring legal clarity to same.

Families up and down the country are reading newspapers today to see how the situation is being addressed, but it is not. Instead, we have pushed the issue out further, leaving people wondering about the definition. We must now decide whether we want to support the 20,000 families and press for the board and lodgings rate of €54 per week. The Minister of State, Deputy Breen, has considered whether this matter should be reviewed, but where is that review? The situation has not been reviewed in 15 years. According to the Minister of State, the 20,000 families would benefit from a review, given that they would then fall under the minimum wage criteria.

Why is the Government allowing these anomalies to continue and why is it prepared to dismiss the concerns of families that depend on au pairs? Does the Government believe that the au pair programme is worth maintaining? Apparently, the Minister of State requested the Low Pay Commission to review the board and lodgings rate last September, but nothing has been heard since. When will the review be completed and when will families with au pairs have clarity on the matter?

Deputy Mary Lou McDonald

What about the au pairs themselves?

An Leas-Cheann Comhairle

I thank the Deputy for observing the time. I am anxious that Members would keep to the three minutes. The Tánaiste has three minutes.

The Tánaiste

I recognise Deputy Rabbitte's interest in the issue of au pairs who are working with families in this country. As she appreciates, the approach of the Government to child care generally is to extend the schemes that are available, to ensure a far wider number of families benefit from the child care subsidies that are available and to introduce a second ECCE year. There was agreement in the budget that more money would be provided for child care in order to extend the programmes, as the Minister for Children and Youth Affairs, Deputy Zappone, announced.

There is a history in this country of informal child care. In terms of access for funding for child care schemes, the Government has asked that childminders would register with county child care committees. They have, and continue for the most part, to operate in an informal and unregulated manner. We would like to see more registration because it is a support both for the families and the childminders who are providing the service. I believe it is in that context that the debate and discussion on au pairs has to be seen.

I welcome the recent ruling to which Deputy Rabbitte referred, and also the fact that the Minister of State, Deputy Pat Breen, ordered a review some months ago. We await its outcome. It is clear there is huge potential for exploitation and we must be very clear what precisely families are asking au pairs to do. The Deputy cited instances where au pairs have been asked to do far more than they originally expected. We will await the review to see precisely what kind of approach is best. In the broader context that I have outlined, we have seen a lot of informal arrangements and they predominate among families who choose childminders. We want to move from that so that we have standards and regulation but the question is how far one goes with regulation. The au pair situation is a classic example of that. Many families will want to continue with more informal arrangements but clearly we need to have good guidelines and the review will examine whether they should be statutory.

The au pair system has traditionally, and should continue to be seen, as an educational and cultural opportunity for the person visiting, as opposed to a replacement for child care. We do not want to move in that direction where employing somebody on a more casual basis or asking them to be part of one's family is seen in some way as a substitute for child care. A working group on childminders is examining the entire question of registration and how that can be accelerated and we await the report on the au pair situation that the Minister of State, Deputy Breen, has commissioned.

Deputy Anne Rabbitte

I thank the Tánaiste for her comments. No side of the House condones any form of exploitation but what the Tánaiste said does not address what is a very serious issue. Families who use au pairs need more than just platitudes at this stage. They need to know how long the Low Pay Commission will take in reviewing this area given all the other issues it must consider. Given that there has not been an increase to the board and lodgings allowance for au pairs since 2002, surely there is a reason to urgently review the rates of au pairs if they are allowed to continue to be covered under the National Minimum Wage Act?

Some people require flexibility or someone to stay in their home, for example, a nurse or garda. We must allow shift workers to have child care solutions that work for them. Parents must have a choice in terms of child care. We cannot remove all the choice that is currently available. The Government's inaction is encouraging more au pair activity into the black market and it is being forced to go underground.

The Tánaiste

We await the Low Pay Commission's review on board and lodgings. I agree with Deputy Rabbitte that it is time to review the rate paid to au pairs. There is no question about that. We await the report to see precisely what the recommendations will be. Extending the availability of affordable, accessible child care remains a priority for the Government.

Yesterday, I held a consultation on the new national women's strategy attended by 150 women. The question of further financial support for parents who are trying to access child care came up again and again so it remains a priority. The Deputy can see the increased funding in the budget from the Minister for Children and Youth Affairs to extend child care. The regulation and approach to au pair services must be seen in that context.

Deputy Mary Lou McDonald

I want to raise a HSE report into colonoscopy screening services at Wexford General Hospital. The report concerns the recall of patients who were treated by a consultant referred to as "clinician Y". The recall was instigated on foot of two cases of cancer being detected in October 2014 in patients who had recently undergone a colonoscopy but had not been diagnosed. The report found a higher than acceptable rate of interval cancers in the cohort of patients screened by clinician Y. What this presents in non-HSE management speak is a shocking scenario. The report found that a recall of 615 patients found 13 possible missed cancers. Six of the cases concerned patients in Wexford and seven involved patients in Carlow and Kilkenny. Of the 13 cases identified, it has been discovered that one man died before the recall took place. We can only send our sympathies to his family and loved ones this afternoon and indeed to all those affected by this turn of events.

Cancer screening programmes like this one are valuable. They can and do save lives and it is essential that they enjoy public confidence. There is always the possibility of human error in anything, including medical diagnosis. That is possible but this scenario goes way beyond that. Missed diagnosis on this scale reveals potential systemic and institutionalised problems concerning bowel screening in a hospital serving much of the south east. What we need are assurances that this will not and cannot happen again. We all want and need citizens to have confidence in the screening programmes, which are crucial for early diagnosis of life-threatening diseases that can be treated or indeed cured if detected. Events like this one in Wexford General Hospital do not help that cause. They reveal a catastrophic series of errors. What citizens deserve are answers. I listened to Dr. Orla Healy on "Morning Ireland" on my way in this morning. She spoke about key performance indicators, audits and local governance structures. This is all very fine but none of it provides citizens with the answers they want. How did this happen? They want to know why it took so long to rectify and recognise the issues involved and, above all, they want to know who is responsible. Reports report, and God knows we have had lots of reports about the health service, but what we need to know is who is accountable in this instance and where the buck stops.

The Tánaiste

I acknowledge the huge anxiety and distress for the patients concerned. Like the Deputy, I extend my sympathy to the family of the patient who died before the HSE review commenced. The report outlined the look back process and the actions taken by the HSE following identification of the probable missed cancers. The Deputy talks about this being systemic. It is important to note that the HSE related these events to the practice of a single clinician. The full report has been made available on the HSE website. Following the HSE audit, 615 patients were recalled for either a repeat colonoscopy or an outpatient appointment. I am informed that all patients involved have been contacted.

It is important to note that all had open disclosure and have since been provided with support and treatment. Since the Wexford General Hospital incident, BowelScreen has reviewed its quality assurance procedures to ensure all units and individuals delivering colonoscopy services on behalf of BowelScreen are doing so to the highest possible standard.

In line with good practice as well as the open disclosure, an external review is commencing to see what further lessons can be learnt. It will look at how the incident was identified and managed, and will include recommendations on the point the Deputy has made about governance, accountability and authority at each level involved. It is expected that review will take six months to complete. The Minister of Health has been made aware of the incident and has received regular updates on the progress of the review.

I wish to make the general point that bowel cancer is the second-most common newly diagnosed cancer in Ireland. It is also the second-most common cause of cancer death in Ireland. The BowelScreen programme provides a valuable service and screening is the most effective approach. The uptake of the bowel screening programme offered to individuals is not what it should be. This is an opportunity to encourage people to respond when they receive the letter on screening in the post.

Deputy Mary Lou McDonald

I entirely echo the Tánaiste's sentiments in respect of the screening process. I return to my initial point. This is why public confidence is so essential. For the uptake to increase and therefore for danger to citizens' health to decrease, people must have confidence in the system.

These events date back to October 2014. This has been a long running saga. A number of people placed their trust and confidence in that screening programme and were misdiagnosed or not diagnosed. In any event they left in full confidence that they were hale and hearty only to discover after the fact that was not the case.

The Tánaiste made the point that the misdiagnoses can be traced back to a single clinician. It should be said that the medic in question contests the findings of the report. It is important to put that on the record of the Dáil. People who have heard the news from Wexford General Hospital ask if they can have confidence in the programme, and also who takes responsibility for this. At the end of the day when the reports are written and the audits are done, where does responsibility lie? Is it with an individual? Is it the stresses and strains of an under-resourced system? Citizens need answers to these questions.

The Tánaiste

Neither the Deputy nor I want to undermine confidence in the screening processes we have in place for various illnesses and health issues. Having said that, in October 2014 when the national bowel screening programme was informed of the two cases, it took action. In November 2014 Wexford General Hospital, BowelScreen and the particular clinician, let us say clinician Y, said no further BowelScreen colonoscopies would be carried out by that clinician until the review of the two cases was completed.

In January 2015, a HSE serious incident management team was established. People were contacted immediately. It is important to note that there has been both action at a local level within Wexford General Hospital and by the HSE and we will also have an external review in line with good practice and that there has been open disclosure. Open disclosure certainly in the way this has been done is new and to be welcomed. The external review will, of course, address the various issues the Deputy has raised today.

Deputy Mattie McGrath

I wish to ask about the ongoing situation in South Tipperary General Hospital and the general crisis in accident and emergency departments. South Tipperary General Hospital, formerly known as St. Joseph's and still called that in Clonmel, which the Minister, Deputy Harris, has visited, is a very old hospital.

First, I wish to salute and pay tribute to the front-line staff - doctors and nurses - all other staff and the management for the tremendous work they do there on a daily basis in appalling conditions. They see no end to or relief from the chronic overcrowding, the bed crisis and the lack of capacity. The hospital just does not have the capacity to deal with the influx of patients, especially since the accident and emergency department in Nenagh was closed. The hospital has a huge catchment area which includes parts of Deputy Mary Butler's constituency of Waterford. The situation is at crisis point.

The Minister for Health, Deputy Simon Harris, visited recently and there was a promise of a patient hotel. It never arrived and we knew that it would not because there had not even been planning meetings about it. We had the announcement eight days ago of 11 extra beds in an alcove off a corridor. It now transpires that they are not beds but trolleys that will just be shoved into an alcove and patients will be left there, in many cases without blankets or pillows. Patients have to use their own coats. I have seen elderly men and women with no pillows and family members going out to buy some for them. It is appalling - the conditions are almost Third World-like.

I appeal to the Tánaiste and the Minister for Health, Deputy Harris, to do something. Is the latter going to end up like his predecessor, Deputy Leo Varadkar, totally captured by the HSE officials? Deputy Varadkar has escaped, has gotten a new lease of life and freedom and the best of luck to him. He was captured by the officials, as is the current Minister. Every parliamentary question that is submitted to the Department of Health is sent to the HSE for answer while we have all of these scandals, one after the other.

The Minister for Health, Deputy Harris, visited the hospital in Cashel and was shocked at the conditions there. We were told that less than €15 million was spent there. However, the Committee of Public Accounts decided this morning to investigate it at my request because €22.4 million was spent but it is a patient-free zone. No patient will be allowed into that hospital. There are no beds and even the lift was removed. There is something rotten in the state of Denmark with regard to the HSE.

Two former Ministers for Health, Deputy Leo Varadkar and Senator James Reilly, said that the HSE would be disbanded, as did two former taoisigh, former Deputies Bertie Ahern and Brian Cowen. Somebody has to take control of the HSE because, as I have said numerous times, it is an organisation that is unfit for purpose. It has cannibalised itself with officialdom and is not serving the public. The patient seems to be the last person that is considered or respected by the HSE and the situation in Cashel demonstrates that quite clearly. Cashel is only 15 miles from Clonmel. We were promised step-down beds in Cashel to relieve the pressure on the hospital in Clonmel but instead of that, it was stripped of all its medical and surgical equipment. Even the lift was removed. The patient seems to be the last person in whom we are interested. Officials are ruling the roost.

The Tánaiste

I recognise the points the Deputy has made with regard to the challenges being faced in Clonmel. One of the key targets of the various health initiatives, particularly the €40 million initiative announced by the Minister for Health, Deputy Harris, is to reduce delayed discharges nationally from a high of 695 earlier in 2016 to fewer than 500. The HSE has exceeded this target. It is very important that we recognise that because home care packages are being supplied, people are able to leave hospital, thus taking away some of the pressure.

Of course, there have been some initiatives taken in the hospital to which the Deputy refers. Extra beds have been provided, the emergency department has been extended and the community intervention teams have been further supported. However, challenges remain. Since the start of the winter initiative over 7,500 patients have availed of the services of community intervention teams meaning that many were, in the first instance, able to avoid hospital while others were discharged earlier. Over 1,000 of the aforementioned 7,500 patients got extra services. Under the initiative 670 additional home care packages were provided and 330 extra transitional care beds have been approved since early October 2016. Extra step down beds have also been provided in a number of hospitals.

The Government, like everyone in this House, is keenly aware of the challenges, particularly in our emergency departments.

A range of initiatives has been announced to improve the situation. We have a reduction in the number of people on trolleys but it is still too high. It has reduced from the high of recent weeks. Other initiatives being taken may benefit the situation described by Deputy McGrath, for example, the utilisation of private hospital capacity to support some public hospitals, additional access to diagnostic services for GPs and supporting nursing homes in the challenges they face at present. It is hoped these initiatives will ease the situation. The Minister has been seriously examining and addressing the very situation outlined by the Deputy, which is affecting Clonmel.

An Leas-Cheann Comhairle

I will deprive Deputy McGrath of a supplementary question because he has had extra time today to which he was not entitled. My advice was that the Rural Independent Group had time today but I am now being told it was the Labour Party. I apologise to the Labour Party, in particular Deputy Howlin, and I now call on him.

Deputy Brendan Howlin

Does Deputy McGrath wish to finish with a supplementary question?

An Leas-Cheann Comhairle

No, I am providing for an extra question.

Deputy Brendan Howlin

We are to have five questions today.

An Leas-Cheann Comhairle

We must accommodate. We will possibly penalise Deputy McGrath at a later stage, even though it was not his fault.

Deputy Brendan Howlin

I know the Leas-Cheann Comhairle did not intend to disenfranchise the Labour Party.

Deputy Mattie McGrath

Nor did I. On a point of order-----

An Leas-Cheann Comhairle

On a point of clarification, it was an administrative error and we will leave it at that. Everybody is human.

Deputy Brendan Howlin

Nobody intended to make the mistake.

Ninety-eight years ago today, the Democratic Programme for the First Dáil was published. Written by the Labour Party leader, Tom Johnson, it set out an ambitious set of proposals to make Ireland an equal and prosperous nation. That programme declared the right of every citizen to an adequate share of the produce of the nation's labour. Ninety-eight years later, the Tánaiste will agree we are some distance from realising this important and lofty ambition.

During the last election, the Labour Party proposed the Low Pay Commission be mandated to deliver a living wage to all working people during the lifetime of this Dáil. We wanted to build on the decent progress made by the previous Government, which saw the hourly minimum wage rate rise by €1.50 after Fianna Fáil had savagely cut it. The programme for Government which Fine Gael, together with the Independents, has published, promised to increase the minimum wage to a level of €10.50. It is a crying shame the Government has done nothing to deliver on this outcome to date. The 10 cent per hour increase awarded from 1 January will come as little comfort to those working on the minimum wage. For the 100,000 people or more who get paid just €9.25 per hour that increase, bluntly, was an insult. If the Government continues at this rate of increase, if this is to be the rate that will take place, it will be 2030 before the modest €10.50 promised in the Government proposals is reached. That is another 13 years to achieve the target set. Frankly, that is not good enough, and I suspect that privately the Tánaiste agrees with me on this issue.

What action, if any, does the Government intend to take to deliver at the very least on its published commitment to bring the minimum hourly rate of pay in the State to €10.50? More importantly, will Fine Gael now review the agreement it has with the Independents on this, and the commitment set out in the programme for Government, and instead set a clear pathway for the lowest paid in the State to achieve what, by universal agreement now, is required to maintain a living wage in the State?

The Tánaiste

I thank Deputy Howlin, who quoted Tom Johnson, and I recognise the anniversary today to which he referred. The Deputy spoke about people benefiting from the fruits of society.

That is precisely the approach the Government took in the budget. We passed a prudent budget. The ESRI recognised that those earning the least benefited the most. There are now 2 million people at work and it is Labour Party policy to ensure people have access to jobs, a job being the best way out of poverty. It improves people's standard of living and it gives us the resources to invest in services we need for the fair society to which the Deputy referred.

Access to services is part of creating a fair society. The Low Pay Commission was independent during the Deputy's time in Government and it remains independent. The programme for partnership Government sets out detailed actions and commitments which will be implemented over the lifetime of the Government and has one simple objective at its core, namely, to make people's lives better in every part of Ireland and ensure the recovery reaches out to every family and region. We are taking every action we can to build the strong economy that will enable us to deliver the fair society about which the Deputy spoke.

The progress report which we published some weeks ago sets out some of the progress made to date. I recognise that there is more work to be done and, as resources permit, the issues outlined by the Deputy will continue to receive attention. I ask the Deputy to acknowledge that it was a fair and prudent budget that continues our road to economic recovery and allows us to give direct support to individuals who need most. It also creates the conditions that ensure people have access to work and we can invest in services.

Deputy Brendan Howlin

Getting people back to work is an overarching priority but getting people back to work is not the full story. People in work have to be afforded a decent standard of living and work must pay. I am aware of the mandate of the Low Pay Commission but that mandate can be changed by the Government. We have proposed that the terms of reference of the Low Pay Commission should be amended by including a requirement that it works to the achievement of a minimum wage equivalent of 60% of median income by 2021. The Minister for Jobs, Enterprise and Innovation, Deputy Mary Mitchell O'Connor, has resisted that change. Will the Government consider making a change to the terms of reference of the Low Pay Commission? It is not its fault that it allocated a miserable 10 cent per hour as that was all it could do under its terms of reference. Would the Government change that and make sure public sector workers are the first to benefit, and ensure the Public Sector Pay Commission, now in being, is mandated to deliver on a living wage for all public sector workers, for whom the Government has direct responsibility? Is it content to wait until 2030 before a decent living wage is paid to workers in the State?

The Tánaiste

The Deputy is well aware of the challenges this country faced and he was instrumental in ensuring we moved forward on the right path to ensure the economic recovery. The last report from the commission made several points on concerns about remaining competitive, the fragile recovery and the impact on Border areas and SMEs. The commission has commenced work on its third report regarding the appropriate rate for the national minimum wage. As part of the public consultation aspect of this process, it is looking for submissions before 9 February and it will submit its third report by 18 July 2017. The Minister will have heard what the Deputy said and this will be part of the Government's consideration of precisely what rate we can move forward with.

It is clear that in a post-Brexit situation, where there are many challenges and where the country has to remain competitive if we are to continue to create jobs, this kind of decision has to get full consideration. I reiterate that it is crucial for us to ensure we continue on the path of economic recovery on which we have started.

Deputy Róisín Shortall

Earlier this month, the Master of the High Court criticised the Government for failing to protect people who are facing the repossession of their homes. He said that under EU consumer law, our courts are required to examine each mortgage contract, regardless of whether the defendant is in court, to ascertain whether its terms are unfair. His claim is that county registrars, as agents of the EU, are failing in their duty. In light of the seriousness of these claims, I tabled a parliamentary question to the Tánaiste. The reply I received from her on Tuesday directly contradicts Mr. Honohan's claims. Her reply places the onus on the defendant to seek protection under EU law on the grounds of an unfair contract. On further examination, I discovered that Mr. Honohan's claims in respect of the State's responsibility are supported by three compelling sources. First, the European Court of Justice ruled in 2013 that "the national court is required to assess of its own motion whether a contractual term... is unfair". Second, Mr. Justice Max Barrett's recent ruling in the Counihan case cited the European Court of Justice's 2013 ruling. Third, the scheme of the Consumer Rights Bill, which is being advanced by the Minister, Deputy Mitchell O'Connor, in her Department states that this obligation on the courts has been clearly established. Will the Tánaiste tell the House whether her reply to my parliamentary question was cleared by the legal team in her Department before it was issued to me? Did she discuss the matter with the Office of the Attorney General? How can she explain the direct contradiction between her reply and the sources I have cited?

The Tánaiste

This issue was the subject of a Topical Issue debate in this Chamber earlier this week. The reply that was given on that occasion, like the reply that was given to Deputy Shortall's parliamentary question, outlined the approach that is being taken in this regard. Both replies made it clear that further legal advice is being taken on this issue, that the court statements and judgments have been noted and that varying legal advice has been received. My Department has taken legal advice on this issue generally, although not necessarily in relation to a particular parliamentary question, and has drawn up its replies on that basis. It was made clear during the Topical Issue debate that the Department will be taking further advice. I will communicate directly with the Deputy when that information has been received.

The Government has taken a series of initiatives within the Departments of Justice and Equality and Social Protection to reach out to mortgage holders to ensure further information is available to them. Under a new scheme, vouchers for legal advice are made available to individuals to ensure they have better access to legal advice in the courts system. That new scheme has been taken up very successfully since it was announced some months ago. More general information and advice is also available. The Insolvency Service of Ireland has seen a very large increase in its activity recent months since the changes were made and the new scheme was announced. The new scheme has removed any financial barriers that may be encountered by people when they are deciding on the best way forward from a legal point of view. I will communicate further with the Deputy when I have received further legal advice on this issue.

Deputy Róisín Shortall

The Tánaiste's response is just not good enough. I asked her a specific question about Mr. Honohan's criticisms and her potentially inaccurate response to a parliamentary question I tabled on Tuesday. I would expect that the veracity of a reply to a parliamentary question on an issue like this would have been checked before it was issued. Under the European Court of Justice ruling, "the national court is required to assess of its own motion whether a contractual term falling within the scope of the directive is unfair, compensating in its own way for the imbalance which exists between the consumer or the seller or supplier" of a service.

The implications of the failure of the courts to adhere to the requirements of EU consumer protection law are potentially extremely serious. It appears that repossession orders are being granted without the courts taking the initiative to assess whether mortgage contracts are unfair. This is clearly a denial of people's rights by the courts. Are repossessions happening without people being afforded their rights and does this expose the State to legal challenge due to its failure to adhere to the requirements of EU law?

The Tánaiste

County registrars are officers of the court and independent in the exercise of their functions and duties under statute and the rules of court. It is important to point out the following. As a matter of law, they may only make an order for the possession of any land in cases where no defence to an action for possession has been delivered by the defendant or no appearance has been entered by the defendant.

Deputy Róisín Shortall

The Tánaiste is repeating the inaccuracy.

The Tánaiste

Let me finish. Therefore, the power of a county registrar to make orders for possession is extremely limited.

Deputy Róisín Shortall

The Tánaiste is wrong.

The Tánaiste

Where any defence is raised by a defendant, including any defence in relation to the nature or terms of the mortgage contract between the borrower and lender, the matter must, when it is in order for hearing, be transferred by the county registrar to the judge's list at the first opportunity. The courts are independent, which is an important point to make. Following the transfer, it will be a matter for the judge to consider any issues raised, including, if applicable, issues in relation to the EU directive on unfair terms in consumer contracts, which was given effect in Ireland by way of regulations in 1995. The directive and regulations are matters for the Minister for Jobs, Enterprise and Innovation and it is understood that the Competition and Consumer Protection Commission has supervisory powers to ensure compliance with them.

Deputy Róisín Shortall

The Tánaiste is compounding the error now.