JOINT COMMITTEE ON FINANCE AND THE PUBLIC SERVICE debate -
Wednesday, 12 Apr 2006

Special Needs Education Litigation: Presentations.

Chairman

We are discussing matters arising from correspondence on the Supplementary Estimate for the Office of the Chief State Solicitor for 2005 with officials from that office and the Department of Education and Science. When we sent out the invitations, we made particular reference to the Department of Education and Science but are not confined to it.

The joint committee is joined by Mr. David O'Hagan, Chief State Solicitor; Mr. Brian Byrne, Assistant Chief State Solicitor, commercial and constitutional division; Mr. Michael Fallon, head of administration; and Ms Elizabeth Neary, assistant principal solicitor, commercial and constitutional division. From the Department of the Taoiseach we are joined by Ms Aileen Healy, principal officer in the finance unit, and from the Department of Education and Science by Ms Teresa Griffin, principal officer in the special educational needs division, and Mr. DaltonTatton, assistant principal officer in the legal services division.

I welcome the representatives and thank them for attending. Comments of members are protected by parliamentary privilege but those of visitors are not so protected. Members should not comment on, criticise or make charges against any person outside the committee or the Houses.

We will start with a presentation from Mr. O'Hagan and Ms Griffin which will be followed by an open discussion with members. We have received a letter from Mr. O'Hagan today in which he states the Chief State Solicitor is precluded from entering discussions on any court cases in which the Attorney General or his office represents State parties.

Mr. David O’Hagan

I had to bring those limitations to the attention of the committee but want to be as helpful as I can in this important business.

I welcome the opportunity to attend before the committee to assist further with the information supplied to it by the Minister of State at the Department of the Taoiseach, Deputy Kitt, in his letter to the Chairman of 9 March, paying particular attention to Estimates arising from special needs education litigation. Following the Chairman's letter of 23 March, I brought the attention of the Department of Education and Science to the matter and requested that it ensure the attendance of appropriate departmental officials at today's meeting. Those officials are present.

To put the services of the Office of the Chief State Solicitor in context, the work of the office primarily involves the provision of solicitor services in civil law issues for the Attorney General, Departments and Offices. It is a constituent part of the Office of the Attorney General, with a wide remit of civil business, requiring the involvement of staff in many aspects of legal work, including tribunals of inquiry. The range of work also includes civil litigation in all domestic courts and before the European Court of Justice in Luxembourg. In addition, we are involved in conveyancing, property law and general services for an array of public service clients. Many matters are high profile and politically sensitive. They may attract publicity and sometimes involve emergency applications to court, strict time limits and complex issues of law. We offer a service around the clock, 24 hours a day, seven days a week, to our clients.

I would like to make a statement on the impact of special needs litigation on the budgetary Estimates of the office, as this is a matter of concern to the committee. I will preface my statement, however, by reminding the committee that as a constituent part of the Office of the Attorney General, I can only discuss matters relating to the general administration of the office. As a solicitor and an officer of the Attorney General, I am precluded from entering any discussion on any court case or cases in which the Attorney General or my office has represented State parties. Neither can I enter any discussion on legal advice given by the Attorney General on any aspect of these cases. The committee will understand that I am under a duty not to discuss advice given or the conduct of this litigation. I am aware, however, that the Department of Education and Science is represented here today and may be able to deal with some of the issues being raised.

Arising from the general administration of the office, special needs education litigation continues to require close attention by both the Office of the Attorney General and the Office of the Chief State Solicitor. There are approximately 80 cases in being in the High Court, some arising by way of judicial review and some by way of plenary summons. Judicial review usually provides a speedy hearing where the facts and evidence are presented to the court by way of an affidavit. By contrast where proceedings are commenced by plenary summons witnesses are subjected to full oral examination and cross-examination. In 2003 there were 36 special needs cases initiated, 21 of which were plenary cases and 15 judicial review cases. In 2004 there were 20 special needs cases initiated, ten of which were plenary and ten judicial review. In 2005 there were 16 special needs cases initiated, five of which were plenary and 11 judicial review. To date in 2006 four special needs cases have been initiated, one of which is plenary and three judicial review. Only three actions have progressed to full hearing since 2003. The court ruled in favour of the State in the first two cases and the third is before the court and has yet to be determined.

Special needs cases are defended in the public law division of the office and involve legal staff across the commercial and constitutional law sections and the judicial review section. Lawyers in the Chief State Solicitor's office, CSSO, work closely with the Attorney General and the Office of the Attorney General. The legal staff involved are experienced and form part of a special needs education cases group which meets frequently with the Department, with other clients and with the Attorney General's office to review pending cases. Legal staff dealing with cases are supervised by section head and a division head, and are supported by good working methods within the office.

The office has been supported by an IT system for the past ten years. The office is upgrading this system to include a modern system for the management of cases in line with the development in law practice generally. The system has been introduced already to several areas in the office, such as the asylum law section, State property division, and to lawyers doing advisory work in the advisory division. The roll-out of the system continues.

This morning I read that the office's work practices involve being able to settle only on the steps of the court or legal staff turning their attention to cases only a week before going to court. That is not the case. Files receive continuing attention and the office ensures its readiness to deal with issues on a timely basis, having regard to the prevailing circumstances in a case and instructions from the Department. Files receive extensive and ongoing attention within the Chief State Solicitor's office and the office of the Attorney General. Files are never left in abeyance and are not allowed to suffer lack of attention.

All litigation, including the special needs litigation, is defended in accordance with the instructions from the Department or other client depending on the litigation and these instructions set the overall policy approach to the cases. The cost of providing this legal service falls under two headings that impact on our Vote: salaries and apportioned overheads for CSSO legal staff, and counsel's fees incurred and general expenses which can include witnesses's and stenographers' expenses, etc.

The office estimates that the cost of staff salaries attributable to defending these cases, together with allocation of overheads, amounted over the past year to €220,000. We have set out figures in respect of counsel's fees and general expenses which reflect a fair report of the fees and estimates paid in respect of the relevant years from the CSSO Vote. In 2003 the office paid €633,109 to counsel and spent €2,397 on general expenses; in 2004 it paid counsel €501,417 with general expenses of €45,936; in 2005 counsel received €396,872, and general expenses amounted to €49,086. This year to date we have paid counsel €36,852.

The Attorney General nominates counsel in all cases on behalf of the State parties in special needs cases, as happens in most other areas of litigation. A panel of experienced counsel, senior and junior, has been established on which to draw in defending these cases. Counsel in these cases advise on and draft court documentation, namely, pleadings, opposition papers, affidavits, motions, etc. They also advise on constitutional and statutory issues, legal obligations, issues relating to discovery of documents, proofs required in cases, merits and demerits of cases and procedural issues arising. Counsel attend at the consultations held during the stages of a case, including the case conferences and settlement meetings. When a case goes to hearing counsel represent the State parties at these hearings, motions or interlocutory matters such as injunctions and procedural hearings.

The Attorney General determines counsel's fees in accordance with guidelines sanctioned by the Minister for Finance. Since 1997 the Attorney General has delegated authority to the Office of the Chief State Solicitor to sanction fees within certain parameters for certain specified work which readily lends itself to classification for fees purposes. This provides for a high level of control over the payment of costs and the rates paid. The measurement of the State counsel brief fee in special needs cases is governed by several features in each case and entails bearing in mind matters such as the volume and complexity of the material to be assimilated by counsel, the magnitude and novelty of the legal issues involved, the time required to provide a service, the urgency and importance of the case, the seniority, pre-eminence and special expertise of counsel and the potential exposure of the State as regards consequent legislative changes or financial implications. We examine fees paid to counsel in comparable cases and in all cases we look at the performance of counsel to ensure that it warrants full payment.

In these cases the legal officer dealing with the case recommends the fee properly payable considering all these matters and taking into account the guidelines issued by the Attorney General. These considerations may or may not necessitate a reduction in the fee sought. This first recommendation is the sanction of the case officer which in turn is reviewed and approved in writing by the head of the section involved. In cases that are exceptionally complex, such as certain complex judicial review cases where the brief fee for a senior counsel would exceed €9,500 or for a junior counsel, €6,300, the head of the division reviews the fees before the recommendation is submitted to the Attorney General.

While market forces influence the ultimate level of counsel's fees it is generally recognised that the Attorney General pays counsel less than the perceived market rate. It is not unusual that fees suggested are marked down to what the Attorney General considers appropriate to the work involved. The Department of Finance requires that all brief fees in excess of €9,525 be sanctioned. These are fees that generally arise in cases of exceptional importance. Counsel fees are akin to those paid to consultants in other disciplines. The daily fee is set to cover the overheads of counsel, including expenses, secretarial support, insurance, accommodation, books, pension, etc. I have gone through the information on counsel in more detail because it forms part of subhead B of the Vote for the Office of the Chief State Solicitor. This is the subhead under which we have experienced most pressure.

Chairman

I thank Mr. O'Hagan. We will now hear a statement from Ms Griffin on behalf of the Department of Education and Science.

Ms Teresa Griffin

Provision for children with special educational needs fell far short of what was adequate. A combination of lack of resources and co-ordination among the relevant State bodies served children with disabilities poorly. However, there has been significant progress in the past eight years. The numbers of special needs assistants and resource teachers have grown exponentially. One out of every five primary school teachers is now working specifically with children with special needs, while at second level there has been an eightfold increase in the number of resource teachers since 1997. In addition, the Department continues to support the network of special schools that provide education for children with special educational needs. The numbers of special classes and special schools have increased substantially, while there is much wider availability and use of assisted technologies funded by the Department.

Today, children with special educational needs have access to a range of support services. The Department has introduced a general allocation system under which teaching resources are provided for primary schools to assist them in meeting the demands of students with special educational needs. The level of support is based on the predicted incidence of special educational needs within a school and aimed at students who require learning support or experience borderline-mild or mild learning disability.

The response of the State has improved greatly in recent years and the Department, through the National Council for Special Education, is responsive to meeting requests for resources. Let me give an example. In the period 15 February 2003 to 30 June 2004 the number of applications received for resource teaching support exceeded 9,000. During the same period 28 new special needs litigation cases were initiated. It can, therefore, be seen that litigation cases account for a very small percentage of the population with special needs.

Approximately 80 cases are ongoing against the State. Despite all the advances I have outlined, some parents consider what the State is providing to be in some way inadequate or that another form of intervention would be more appropriate. The State contests cases where it considers the provision available is appropriate to the needs of the child. In such cases the parents may decide to sue the State, including the Department of Education and Science, in an effort to obtain a different form of provision for their child. Provision for therapies is often sought in proceedings. In most cases the Department of Health and Children and the Health Service Executive are joined as co-defendants. There is a standing arrangement whereby costs are shared equally among the State parties.

Education and health provision, as opposed to damages, is largely what is at issue. The State makes every effort to reach an accommodation with parents by having regard to its policy. In some cases there may well have been small but perhaps significant gaps in provision and the State recognises this. In many of these cases the Department attempts to reach a settlement with the parents and is very much alive to their genuine concerns and wishes. Where a settlement is reached, the costs are typically relatively modest in comparison to legal costs. It is often the case, however, that the issue of the plaintiff's legal costs becomes a barrier to reaching a compromise. In cases where the Department believes it has discharged its constitutional and legal obligations, it believes it is wrong to pay the full legal costs being sought by the plaintiff. To do so would be a failure of its responsibility to all citizens to manage public moneys for education responsibly. Given the complexities often involved in such cases, it is rarely possible to settle a case early on. Even in cases where it has been possible to seek an early settlement, the legal costs sought do not always reflect the fact that settlements have been achieved.

There are a small number of cases where fundamental disagreements arise between what the Department considers to be appropriate provision and what the parents may wish for their child. This may result in cases having to proceed to a full hearing before a judge. In the past six years only three cases have gone so far as to be ruled upon by the courts, all of which the State successfully defended. A fourth such case is being heard. The committee should understand the State does not choose lightly to dispute these cases. They are litigated where no potential settlement is acceptable to both sides and the Government's authority to decide issues of policy is at stake. The State has an obligation under the Constitution to provide for primary education. In the context of children with special educational needs, that education must be appropriate to their requirements. The State decides on an appropriate form of provision, having regard to the advice available to it from relevant experts in the National Educational Psychological Service, the National Council for Curriculum and Assessment, the inspectorate and independent experts. The Department is not complacent in dealing with these cases and attempts, wherever possible, to reduce the potential for litigation and the levels of legal costs where they arise.

The number of cases taken against the State has shown a downward trend in recent times. This is partly attributable to the substantial increase in resources. The establishment of the National Educational Welfare Board which assists children experiencing school attendance difficulties has helped to almost eliminate litigation in cases involving children suffering from attention deficit hyperactivity disorder, ADHD. It is our belief that the establishment of the National Council for Special Education will further assist the reduction in litigation cases in providing, through its special education needs organisers, SENOs, a more focused and local response to individual needs. In addition, with the phased implementation of the Education for Persons with Special Educational Needs Act 2004 in the next four years, parents who believe their child's needs are not being met will have a process of mediation and appeal open to them. These are likely to prove more appropriate and less costly forms of remedy than pursuing matters through the courts.

It should be remembered that the State's choice is not between spending money on service provision and legal fees. People are free to sue the State where they wish to do so. When this happens, it is clearly proper and appropriate that the State should have available to it the necessary legal advice to make an informed decision on whether it should defend or settle litigation.

Chairman

I thank Ms Griffin. Before I call on Deputy Burton, perhaps Mr. O'Hagan will advise me on a particular matter. He mentioned in his opening statement that since 2003 only three actions had progressed to a full hearing. He also said that 36 cases had been initiated in 2003, 20 in 2004 and 16 in 2005, giving a total of 72. What is the position as regards the other 69 cases? Have some been settled or are they all active?

Mr. O’Hagan

Perhaps I can assist the Chairman. The official from the Department can correct me if I am wrong. We do not expect some cases to be settled easily; we expect that they will proceed to a full hearing. However, a number of cases have been settled. I understand that in a number of cases an agreed provision has been made, which is subject to ongoing review.

Chairman

Is there a breakdown of the 69 cases?

Mr. O’Hagan

My colleague from the Department may be able to give a breakdown.

Chairman

I would appreciate it.

Mr. Dalton Tatton

These figures might not necessarily relate to the cases mentioned. Some might refer to cases dealt with prior to that date. According to our figures, 23 cases were settled in 2003, 15 in 2004 and seven in 2005.

Chairman

Therefore, 45 cases have been settled and legal costs would have been involved. Out of the total of 72 cases, 45 were settled before they reached the floor of the court, perhaps on the steps or well before that stage. However, legal fees applied in all of them. I wanted to make the point that the earlier they were settled, the better. Only three cases have progressed to court.

Deputy Burton

I will begin with the Department of Education and Science and welcome Ms Griffin and all of the officials present. She has stated the costs of the settlement are "typically relatively modest in comparison to legal costs". The figures from the Department which have been given previously show, for example, that legal costs in 2003 of €3.8 million compared to settlement costs of only €667,000. Is Ms Griffin suggesting the legal advisers for plaintiffs are charging extraordinarily high legal fees, given that the table previously made available by the Minister suggests settlement costs very often amount to 10% or less of the overall cost? Is she suggesting the plaintiff's legal advisers charge, for example, multiples of the sums charged by counsel and-or solicitors acting for the State? She has stated that it is often the case that the issue of the plaintiff's legal costs becomes a barrier to reaching a compromise and that the Department believes it is wrong to pay the full legal costs being sought by the plaintiff. Is she implying plaintiffs' solicitors are charging inordinate fees or that cases take so long to come to a hearing that the costs of the legal advisers of individuals contesting cases with the Department have grown enormously?

Ms Griffin

I would not like to comment on whether plaintiffs' counsel are charging inordinately high sums. However, there have been a number of cases where the issue of educational provision has been settled but where we consider the legal costs are disproportionate.

Deputy Burton

Therefore, the cases are not settled because they are not acceptable to the Department.

Ms Griffin

Yes. The costs involved are questionable.

Deputy Burton

Ms Griffin will recall a recent case discussed in the Dáil when raised by Deputy O'Sullivan who is from Limerick and the Labour Party spokesperson on education. The case was eventually handled by the State Claims Agency and involved abuse in a day school. The individual involved had lost her Supreme Court case and, to her great distress, was to suffer legal costs of €500,000 or possibly more — the figures were quoted in the media. The Taoiseach indicated strong sympathy for her predicament. Is Ms Griffin suggesting it is the Department's belief that it is wrong to pay the full legal costs sought by the plaintiff because to do so would be a failure of its responsibility to all citizens to manage public moneys for education responsibly? Has the Department had any contact with the State Claims Agency about this landmark case because of the Supreme Court judgement?

Ms Griffin

I will refer that question to Mr. Tatton.

Mr. Tatton

The Department has had some contact with the State Claims Agency about the case referred to but I do not want to comment further at this time because the proceedings and discussions between the State Claims Agency and the solicitors for the plaintiff are ongoing.

Deputy Burton

Is the Department aware that the Taoiseach, in response to questions from my colleague, expressed sympathy for the plaintiff with regard to the extraordinary costs involved?

Mr. Tatton

Yes, I am aware of the Taoiseach's statement.

Deputy Burton

I will address my remaining questions to the Chief State Solicitor. The Minister of State, Deputy Kitt, in a letter dated 9 March to the committee, said €11 million had been allocated in the 2006 Estimates for the payment of fees to counsel through the Office of the Chief State Solicitor. That is a high figure; the figure for payments to counsel has obviously been rising. Mr. O'Hagan has indicated that limits were set on fees. Do the daily rates correspond in any way to the daily rates for counsel in tribunals? Are they similar, higher or lower? Has the Chief State Solicitor considered tendering for counsel? Mr. O'Hagan has stated the Attorney General selects from a panel of experienced counsel. We would be interested to know if there is any competition with regard to fees or whether the Attorney General selects the counsel he considers best for the job. Are the fees standard? Do they relate to tribunals or commercial work? How are they calculated?

I understand the records of cases are being computerised. Does the Office of the Chief State Solicitor keep records of costs and hourly and daily rates in order that it will be in a position to seek the best value for taxpayer's money in what is an expensive environment? Does Mr. O'Hagan have an overview of the total cost? The figures for legal fees, including settlement costs, in the accounts of the Department of Education and Science were €4.5 million in 2003, €5.6 million in 2004 and just €907,000 in 2005 — I presume the last figure is low because cases are not yet settled. The sum of €11 million from the Minister of State, Deputy Kitt, is in the accounts of the Office of the Chief State Solicitor. Is there more money elsewhere? We also know that there are costs to be picked up for the tribunals. Is it possible to get a global view of how much the State is paying on a departmental basis and through the Office of the Chief State Solicitor and the Office of the Attorney General?

The Department of Education and Science has indicated that the Office of the Chief State Solicitor is now entering mediation processes. In general, would a system of arbitration assist the State in getting better value in legal cases and perhaps in the end reducing costs? For example, I am told the development of special commercial courts and the availability of judges specialising in that area have greatly speeded up the work of the courts and increased the access of individuals to justice, resulting in speedier deals. The PIAB suggests it has achieved similar results. If the Office of the Chief State Solicitor has so much State litigation to deal with, would a system of arbitration panels or even specialist courts give better value to the taxpayer, both those paying tax in general and those who feel aggrieved because they have a just legal case against a Department but cannot get it settled?

Mr. O’Hagan

The Deputy asked a number of interesting questions, of which I noted four. I will deal with the fourth first, that is, the question of arbitration and whether such a system would render litigation against or by the State more efficient or less costly. The Deputy specifically mentioned the commercial courts. There is general recognition that the High Court works well in reaching decisions and resolving matters in a specific type of commercially sensitive case of particular size. It is probably too early to evaluate with certainty the costs and benefits attaching to the commercial courts but this will undoubtedly follow in due course. However, an extensive effort is required to mount a case in the commercial courts with no great saving for either litigant. Perhaps this is a matter that should be examined as the matter progresses.

From time to time we examine the question of arbitration in appropriate cases where the parties to an action are interested in resolving the matter in that context. It has certain advantages in so far as the proceedings are confidential. This process may or may not suit a case, as there is no right of appeal against the award of an arbitrator, which can be a disadvantage. Arbitrations tend to take longer to resolve than litigation because one does not have the ordinary pressures associated with a court list to proceed with cases. It is also my experience that arbitrations can be more expensive. There are many instances where arbitration is the preferred way forward, for example, in determining specialist cases involving construction contracts and so on. I am not sure, however, that it would be a suitable mechanism to deal with the majority of actions taken against or by the State. Nonetheless, the Deputy's question gives food for thought.

The third question relates to an overview of the total cost. At first I thought the Deputy was looking for this information in the context of special needs, which would be easier to give——

Deputy Burton

Mr. O'Hagan can provide it for the committee later but could he make a guess as to what the overall figure is?

Mr. O’Hagan

I do not have information on the total exposure of the State as a result of legal actions, as it is above and beyond providing our legal service. It would require us to add to that figure the costs met on a party by party basis. This information is not readily obtainable but we could examine the matter.

The Deputy asked about the ongoing computerisation of the office, hourly and daily rates and value for money.

Deputy Burton

The question of tendering for legal advice.

Mr. O’Hagan

Ten years ago there was the same level of computerisation in the Office of the Chief State Solicitor as most offices. Our system is good and has served us well. There is a computerised registry that provides the office with a significant level of information on a daily basis. However, it was not totally integrated in so far as it did not include financial information and we did not have the facility to exchange information quickly between our office and the Office of the Attorney General. In the past ten years there have been considerable developments in the computerised systems serving large law offices. We have had a particular interest in examining those systems in recent years when selecting a system that would provide greater support for our office and lead to greater efficiency and the abstraction of management information. We have selected a system that is being developed and in the process of being rolled out. The office's lawyers who deal with asylum law, all of our lawyers who deal with conveyancing and landlord, tenant and State property issues, those lawyers involved in our advisory division and the Office of the Attorney General use the system. We are in the throes of rolling it out to the remainder of the office. It has been integrated with a new financial management system within the office, a well known financial application entitled Aggresso. We have found that we can integrate the system to obtain relevant financial information on various cost items within the office. While we tend to track our costs, we can also track the costs of counsel and providing legal services in various areas of practice. We are developing the required reports to provide us with the most relevant and efficient information under those headings.

The next question concerns how we source counsel, in particular with regard to the estimate for counsel fees referred to.

Deputy Burton

The figure of €11 million.

Mr. O’Hagan

There are several issues involved such as the constant question of how much money we pay counsel. We have good controls and are rigorous in ensuring counsel are not paid more than they are entitled to in the light of market rates.

A wide spectrum of legal work is undertaken by our office and the Office of the Attorney General and it is not always easy to tender for the service of counsel. Within law practice, there is generally no evidence that anybody tenders if it does not work. We tend to employ counsel on the basis of horses for courses, as it were. We know who the specialist counsel are, the counsel with whom we work well and who the good performers are and tend to retain them. This is the decision of the Attorney General who usually selects good counsel. It is our view that counsel are paid fairly rather than overpaid. The evidence suggests they are paid less than the going rate.

Deputy Burton

How does this relate to the tribunal rate? Is the figure €1,200 per day?

Mr. O’Hagan

Yes. Counsel would not generally be paid a daily rate but on the basis of a brief or for specific advice. They may write an opinion on an issue or prepare documents which might be relatively straightforward or intensely difficult. This must be taken into account.

Deputy Burton

Is it time-based or based on the market rate?

Mr. O’Hagan

It relates to the complexity of the market and the standing of counsel. There is a range within which there is extremely complex work. I will inform the committee of a number of factors. Complex work undertaken by high performing, well established counsel tends to be costly. There is a considerable amount of work of a more medium grade, as it were, which is done by younger and less experienced counsel, for which the payment is nowhere near the same rates.

The Deputy is concerned about our controls and how we get value for money for the figure of €11 million. The analysis undertaken by our office would indicate that there are two other factors which are bearing on the increase of the counsel's fees subhead — subhead B — in our Vote. Those are, first, an increase in the volume of litigation and also, based on the evidence from looking at cases in the office and speaking with colleagues, our analysis is that in recent years there has been a move from cases of ordinary complexity to much more highly complex cases. One need only look at the news at 9 p.m. or read the morning newspapers to appreciate the level of complexity that is currently arising in cases.

We have some figures which might be illustrative of increases in volume in complex areas. I will try to pick them out for the committee. Some of these are figures which we presented last year but we have been able to update them to give outturns to the committee. We looked specifically last year at litigation in two areas. One was asylum litigation and the other was two areas of litigation that arise under the umbrella of judicial review, that is, general habeas corpus work and non-asylum or general judicial review cases.

I will deal with the asylum cases first. Our analysis, which we presented last year and which we were able to update at the beginning of this year in the light of the outturns for 2005, showed that in 2003 we were dealing with 409 cases, in 2004, 738 cases, in 2005, 910 cases, which at that stage indicated to us an increase in volume of complex asylum litigation of a rate of 122%. We have been reviewing that in the light of the number of cases we have been dealing with in the first quarter of 2006, which is 312 cases. This would indicate to us an ongoing growth in that area. If the projection holds good, and our view is that it should, it may well be that the outturn for 2006 in terms of the number of these cases would be at 1,248 cases, which is an indicator of——

Deputy Burton

Is Mr. O'Hagan saying that since 2003 there were 409 such cases and he is now expecting to have 1,200 cases by the end of the year?

Mr. O’Hagan

Yes.

Deputy Burton

That is a big increase.

Mr. O’Hagan

Yes, and there are probably special factors bearing upon that as well. I am also conscious that perhaps this might be the high point in this litigation. I also accept the other argument that the volume of these cases will be likely to drop over the next couple of years. I believe that is the scenario at which we are looking.

If I could perhaps look at two other areas of work. Again, last year we gave indications as to the increase in the number of general habeas corpus cases. In 2003 we had 40, in 2004 we had 49, in 2005 we had 108 and, based on an analysis of the cases initiated in the first quarter of the year, the indication for 2006 is that we will have 88 cases. That is a drop in last year’s figure which was a particularly high peak in habeas corpus cases and probably will not be repeated but, nonetheless, when it is looked at in line with the figures for 2003 and 2004 it indicates a serious enough escalation.

Looking at cases arising within the overall province of public law, it is useful to look at the patterns of growth in the area of judicial review. We are talking here about non-asylum judicial review. This is the area where, across Departments and offices, various decisions are being challenged by litigants. It is a very fast growing area of public law. In 2003 we had 161 cases. In 2004 we had a dip to 134 cases that was accounted for by specific reasons. There was a growth to 211 cases in 2005. Our analysis for the projected outturn of cases in 2006, based on the 73 cases initiated in the first quarter of the year, would indicate that we need to be ready to deal with 292 cases of judicial review by the end of 2006.

No doubt there are many factors causing that increase in workload. Judicial review and public law generally is getting a much higher profile. People are more aware of it. There appears to be, not just in this jurisdiction but in other jurisdictions, a considerable growth in that area of Government and law. One can see the pressures on the Vote and the demand we make of the Department of Finance for an Estimate. One can also see there is evidence of a considerable growth in work and the complexity of the work. Last year we gave a long list of cases to the joint committee which was aimed more than anything else at illustrating the current position. Members would be familiar with many of the cases from reading the newspapers and so on but they illustrate a trend towards much more complex litigation.

Of course there are other areas as well where litigation is in decline, or at least our involvement in it. Thank goodness we are well away from the days of Army hearing loss cases. We are in the mopping up phases of that. As regards our own Vote, a very important part of our work is dealing with abuse litigation. We are fully involved in providing the litigation service for the State. Since last February the case management for this area of practice has been taken over by the State Claims Agency. We are working closely with it in providing the litigation services but, as and from the date when the responsibility passes to the State Claims Agency, it will pay counsels' fees from that date. That will lift pressure from our Vote in that area of activity.

Chairman

What Vote does the State Claims Agency come under?

Mr. O’Hagan

It is a completely different Vote. It is not part of the Chief State Solicitor's office.

Chairman

Is it under the remit of the Attorney General's Vote?

Mr. O’Hagan

No, it is not. It is a separate Vote.

Deputy C. Murphy

Is it under the NTMA?

Mr. O’Hagan

Yes.

Chairman

Then it is the Department of Finance.

Deputy C. Murphy

I thank Mr. O'Hagan. I am pleased he is here and I hope he can answer some of my questions. I requested the committee to issue an invitation to the Chief State Solicitor's office and the committee agreed to this. I put together a number of replies to parliamentary questions I received. One of them, in regard to costs, has been referred to. My motivation was to see if things could be done differently so that less money would be spent on lawyers' fees and more on the direct provision of services for the children who are the subject of these court cases. To an extent there are a number of pieces in this jigsaw.

I received a reply to a parliamentary question on costs. I appreciate that Mr. O'Hagan has said Departments sometimes share costs if they are party to the same action. For example, the Department of Health and Children and the Department of Education and Science have both been involved in a number of cases. I have calculated the total expenditure to be in the region of €20 million, including legal costs and settlements. A fraction of the amount relates to settlements. Reference was made to this in the reply, which stated that where a settlement had been reached the costs of the actual settlement were typically relatively modest in comparison to the legal costs. That would tend to indicate to me that the motivation of people taking these cases was to get appropriate education for their children. The motivation of those taking the cases is to secure appropriate education for their children. There were substantial numbers of cases but, although it was said that they are declining, numbers at primary level and at secondary level indicate that there will be substantial numbers of cases at second level. This is an opportune time, therefore, to discuss this because the way it is approached could reduce both the trauma of parents who are forced to go before the courts and the resulting work for the Department of Education and Science, the office of the Chief State Solicitor and others.

There has been an improvement in services at primary level as a result of the number of cases taken in the 1990s. The courts and the parents were, in fact, making policy. The children who were the subjects of those cases are now approaching second level. The numbers that will present at second level will rise but many of the cases taken at primary level were open-ended. Therefore, there will be a mechanism to address problems that might arise at second level.

It was mentioned that 9,000 children receive teaching support but only a small fraction of those would have gone to court. All of us have contact with families with children who have special educational needs. We are all conscious when meeting parents in such families of the enormous workload they have. The last thing they want to do is to go through the courts. Some of the cases can take a long time and it is extraordinary for parents to take this step. It demonstrates the extreme pressure they are under. I have seen letters to parents who have taken cases from the Chief State Solicitor's office reminding them of the substantial financial risks associated with such cases. That is viewed by parents as a threat.

One of today's newspapers reported a claim that children presenting at second level are being refused even though it is illegal to do so because there is inadequate provision of support services. Some 170 schools were surveyed for that report. This makes my point — the lack of services will push parents in the only direction possible when they have failed to secure services by every other means, to take court action. It is undesirable for everyone, particularly the children in question.

I asked a parliamentary question about the National Council for Special Education. I wanted to find out about provision and if children are captured at primary level and the spend predicted for when they present at second level. The reply stated that the NSCE is not in a position to advise the Department as to the number of pupils in primary school in receipt of supports or the numbers transferring to second level schools in the coming years. If the service provider cannot predict the numbers, there will be a deficiency in services. Those services are not just about education supports but supports from the Department of Health and Children for speech and occupational therapy that would be appropriate for some interventions.

I wondered if there was a geographic element to the cases presenting because there is a patchy range of services in the HSE. There might be sufficient speech therapists in one area and very few in another area. When I asked the parliamentary question, it was referred to the Health Service Executive and I received a reply from two segments of the old health board but I could not put them together to come up with an overall picture. That is unhelpful because we need a geographic understanding of the cases if there is to be a response to potential clusters.

Instead of investing in legal fees, we should invest in cutting the lead-in time for evaluation by the National Educational Psychological Service. It can take up to two years to secure an evaluation and that is not acceptable when seeking education at an appropriate time when there is a window of receptiveness with a particular condition.

At what point are cases evaluated? The redress board was a means by which the State avoided spending a large amount on legal fees, spending it where it was needed instead. If cases could be headed off, the reasonable supports being requested could be provided. Parents are not looking for unreasonable provision. Is there a mechanism operated by the Chief State Solicitor and the Department of Education and Science? We should ask if policy responses would reduce the number of cases.

I am told there are currently 80 cases, a large number. The Department talks up the extent of intervention in response to parliamentary questions on the matter. I cannot give such a reply stating that there are X number of extra teachers and so on to a parent who cannot find a place for his or her child. If the provision does not cover that child the reply is of no value to the parent or the child. Most of these relate to education but there is a problem if we are spending in the region of €20 million. The cost for autism services in the eastern region is €4.85 million a year, the equivalent of which is being spent in the courts. While I understand the Department must have the right to defend particular cases, some cases could be dealt with at an earlier stage.

Ms Griffin

The Department would prefer not to have to defend any cases and that is why so much effort has been made to put the resources in place in the schools for children's special educational needs. We are conscious that the litigation in the past concerned children at primary school level. They go on to post-primary level where provision must be made for them.

I appreciate Deputy Murphy's point that giving an overall figure is no good if it does not capture a specific case but it would be unfair to omit the fact that the Department has done work at this level. In 1998 there were 200 resource teacher posts at post-primary level, there are now 1,653 full-time equivalent posts. That is on top of any spare capacity schools might have if they are over quota. There is a substantial investment for support teaching for children with special educational needs. I do not have figures for post-primary special needs assistants in 1998 but there were just under 300 then and there are now 1,100. We are trying to anticipate where these children will go on leaving primary school. The Department is often not informed which of four or five post-primary schools parents have chosen for their children.

It would be very difficult for a centralised Department to track individual children. The rationale behind having 75 special education needs organisers, SENOs, in the national council for special education is to acquire that local knowledge and provide parents who encounter difficulties in placing children at post-primary level with a person who can advise them and adjudicate on the appropriate resources for that child.

The SENOs have been in place since the beginning of 2005 and are gathering that information. It is difficult for them to know about every child with special needs in a particular region given that they are dealing with all the primary and post-primary children in that region.

A legislative framework has also been developed, in the Education for Persons with Special Educational Needs Act and the Disability Act. Those Acts place an onus on the Health Service Executive, the Department and the National Council for Special Education to allocate resources to support children with special needs and to co-operate and provide a coherent plan. Under the Disability Act a liaison officer will be appointed and under the Education for Persons with Special Educational Needs Act the SENOs are in place so there is a group of people who consider a child's health and educational needs in a holistic way.

The Department would prefer to spend less on legal costs but when we believe there is a significant difference of position in cases presented, and no possibility of a settlement acceptable to both sides we must defend our position. Where there is a gap in services we are ready to accept that and to put the provision in place and try to settle these cases at the earliest possible opportunity.

The figure of 9,000 children refers to applications received but not all of those are individual special needs cases. They may include parents who feel their children do not fall into particular categories. The national council for special education is considering the requirements for resources and other related issues that it requires to implement the Education for Persons with Special Educational Needs Act in full and will report to the Minister by next October. We will have a better idea of lead-in time and more resources at that stage.

Mr. Tatton

Cases are evaluated as soon as we are aware of their nature. We also use independent psychologists to assess the needs of the children involved. In most cases children are in provision but there may be debate about its appropriateness or whether additional inputs are required. We try as far as possible to have regard to parents' wishes but also to our own responsibilities.

We have attempted to settle at an early stage and even in those cases the costs can be significant, although some saving is made.

Deputy Ó Caoláin

I join my colleagues, too few of whom are present, in welcoming to the delegations. This committee's role is in the domain of accountability rather than accountancy, which is not always understood. We have to look at proposals for the expenditure of public moneys on the basis of ethical as well as financial implications. It is no different for the Office of the Chief State Solicitor. We look at ethical considerations as regards the Government's proposals for the additional funding being sought, and that is the guiding approach that many members of the committee have. While I appreciate some of the responses already given, I hope the delegates will take no offence when I say the committee must review ethical considerations regarding the decisions to expend public money in defence of cases brought by parents who are very understandably pursuing the best educational special needs they can get for their children. Many of us will have direct experience of these problems from within our immediate or wider family circles. Very few families are not touched in some way by all of this. It certainly has been part of my life's experience.

The Office of the Chief State Solicitor acts on behalf of the State in all legal proceedings in which it is involved. Therefore we must be concerned about the decisions made on our behalf, especially as they will impinge on the rights of citizens. The special needs child is a citizen with the same rights as each and everyone of us. Numerous parents have been forced to resort to the courts to press a case for special educational and other needs for their children, having in almost all cases, exhausted all of the other reasonable avenues of address, perhaps over a period of many years. Figures have been cited this afternoon in the responses from the Department and the Office of the Chief State Solicitor. Despite the number of cases cited as being under consideration by the Department and the Office of the Chief State Solicitor, there are hundreds more in which litigation is not the first course the people concerned would consider. People are striving for the same rights by other conventional means, for want of a better description. They will have completely exhausted themselves or are waiting patiently, as many do, for the requisite supports to present. All too sadly, for many of these families these supports will never materialise.

We need answers for those who have had the courage to face the tortuous legal route, for those who have striven by other means and exhausted themselves as well as for those who wait. They must all have answers. I noted in Ms Griffin's contribution that she referred to a number of points on which I would appreciate some elaboration. One of the phrases used was "while having regard to its policy", specifically referring to the Department of Education and Science. Will she point it up to me and show me on paper what policy has guided the decisions to date and is doing so, currently, in contesting cases taken by parents? What is the policy and where is it? We have not read it and neither have we seen it. It has not been presented. Is it Government policy? To what policy are we referring here? Is there a separate policy within the Department, not reflective of Government policy? As I said in my preamble both the Department and the Office of the Chief State Solicitor must appreciate that they are accountable to the entire citizenry.

Two of the other phrases Ms Griffin used were "all of which the State successfully defended" and as regards the number of cases "showing a downward trend in recent times". That is no wonder, given her former assertion, "all of which the State successfully defended". Is it any wonder the numbers are reducing and that the trend is downwards, aside from Mr. O'Hagan's earlier points in terms of current numbers? Many parents view their predicament as hopeless. That is my experience and I meet quite a number of people, particularly in the autism area. They may feel that their position is hopeless and that they have exhausted themselves physically, emotionally, mentally and certainly financially in many cases. This is the compounding tragedy of the experience of such families. It is terrible to see these families, particularly those who have to contend with multiple autism cases in the family unit. When I consider the courage of parents in coping with such situations, I am blessed not to have such a problem with my children, yet I believe I am not coping. How can we expect parents to cope in such isolation, when they present the needs certified by professionals for their children, in terms of psychological assessment, and yet the State is prepared to expend public moneys to prevent them from securing and providing for their offspring for later life? The haunting preoccupation of such parents is what will happen to their child after they are dead. I have heard it so many times.

I want to know what policy is being referred to and what further answers we can give. We can talk hypothetically, and I noted the caution at the outset from Mr. O'Hagan as regards specific cases. I have a file of multiple cases before me. I could rhyme off their names, having met the children in all of the cases. I feel I know them, so familiar have I become with each and every one of them. I intend to cut to the chase with a number of concluding questions, but I received, yesterday, from an elected colleague in the west the details of one case, which is all too typical. It concerns a ten year old boy attending national school who was diagnosed with autism at the age of three and a half. Since then his parents have been trying by every reasonable means to get speech and occupational therapy for that child. He is now ten years of age. I have copies of letters from the school principal, the psychological assessment unit, everything, and six and a half years later this boy has yet to have the services of either a speech or occupational therapist. This is a terrible failure on all our parts. All of us are culpable. It is absolutely outrageous. I took a little note of what his parents have said. Several independent assessments, of which I have copies, have been carried out since 1999, all confirming that this child in County Mayo needs these services. I will read just one sentence from his parent's letter. It states, "We, as parents, find it hard to believe that in Ireland of 2006 we are still waiting after seven years for what we believe are basic services for a child with a disability."

This is the human reality of what we have been talking about here today in different ways, including technically. We cannot get away from this, because this is really what it is all about. These and many other parents are asking why the State is prepared to spend vast sums on legal fees defending cases taken by people on behalf of children deprived of services rather than using the money — Deputy Catherine Murphy made this point well — to provide the services. If we accept that it is heartbreaking for parents to see the resources and the efforts of the State employed as they are, we must consider the effect of this not only on the particular family involved but also with regard to the associated spill-off. We have had many examples of this in recent years.

We must ask where the decision in individual cases is made. Is there a policy guideline or a directive to fight all such cases? Would such a directive come from the Minister for Education and Science? Does the Attorney General, the Minister or her Department have a role in these cases? Are any or all of them referred upwards to the Department or the Minister or are all decisions taken by the Chief State Solicitor's office on the advice of barristers? I can pre-empt some of the responses to these questions but we need to know how the process works.

I am curious in regard to where the decision is taken. I recently made the contrast between the State's willingness to pursue or contest parents' efforts through the courts to secure their rights or the right of access to special needs education and other special needs for their children, yet it is over five years since the initiation by the former Minister for Health and Children, Deputy Martin, of inquiries into the potential of pursuing the pharmaceutical giants — the drug companies which provided the infected blood products that contributed to the deaths of Irish citizens from HIV and hepatitis C. We remember well the case of Brigid McCole and how the State pursued that poor, unfortunate woman to the bitterest end. However, five and a half years after the Minister, Deputy Martin, stated that every avenue of examination and pursuit for redress and address would be employed, no decision has been taken to actively pursue the pharmaceutical giants, which provided infected blood products, for compensation on behalf of the people of this State.

It beggars belief. I cannot rationalise the view, on the one hand, of pressing parents — God bless them — into impossible situations while, on the other, ignoring the position of the pharmaceutical giants, including Baxter International, which was only recently re-engaged by Government in regard to the avian flu vaccine. I accept we must access avian flu vaccine but do we still have to do business with people who provided infected blood products that resulted in the deaths of our citizens? It is all about the rights of citizens, be they children or unfortunate people with serious illnesses and blood disorders, as those in the cases cited clearly were. What is the position in this regard?

Has the Chief State Solicitor's office any role or function in the decision so far not to pursue the pharmaceutical companies in the cases cited and in the interest of the Exchequer? I refer to moneys the State should have retrieved through legal address, particularly in the United States but elsewhere also. After all, when a firm with experience and a proven track record of taking on the pharmaceutical companies was offering a no foal, no fee service, how can that be balanced with the view of the Tánaiste and Minister for Health and Children, Deputy Harney, that to adopt such an approach would in some way lessen the State's standing in terms of international perceptions, which is nonsense. I would like to know the truth.

Mr. O’Hagan

I will reiterate the nature of my role. The Deputy's question is outside the scope of the issues on which I had expected to have to reply and concerns a matter I would like to consider. What I could do is take a transcript of this meeting and bring it to the attention of the Attorney General, in whose office I understand the matter is being dealt with. I give an undertaking to bring a transcript to the office of the Attorney General to find whether an appropriate response can be made. Issues of confidentiality obviously arise in this regard and it may well be a matter that would need to be referred to the appropriate Department. I will refer the issue to the Attorney General's office.

Chairman

That is fine.

Ms Griffin

Mr. Tatton and I will together deal with the points addressed to the Department of Education and Science. It is important to note that the Department recognises that provision for children with special educational needs historically fell far short of what was appropriate or adequate — this was accepted in my presentation. In the past eight years the Government, the Minister and the Department have worked hard to try to put appropriate provision in place for children with special educational needs. I referred in my statement to the huge increase in the number of teachers, special classes and additional resources in terms of the special needs assistants that are now available. What we are trying to do is to put a situation in place whereby parents are satisfied with the education provision available in schools for their children.

We would have a slightly different view on the downward trend in the number of cases. We believe it reflects the fact that, by and large, people are satisfied that there is adequate education provision in place for children with special educational needs while acknowledging that in individual cases there is perhaps a gap in the State's provision of services. In dealing with such cases, the State would consider the cases to ascertain whether there is a gap or whether the position is reasonable. Where there is a gap, we would make every effort to settle a case. We believe the downward trend in the number of cases reflects the significant increase in resources that are now available in schools.

With regard to the case of the ten year old boy, I cannot comment on individual cases. Also, as the provision of speech therapy and occupational therapy does not fall within the remit of the Department of Education and Science at present, I cannot comment in that regard.

The Department's guiding policies date back to 1993 and the special education review committee report and were progressed in 1998 when the then Minister for Education, Deputy Martin, announced for the first time an entitlement to an automatic educational support for children with disabilities. The measures were aimed to ensure all children with special educational needs received the support they required to participate in the education system irrespective of location or disability. This is the policy framework queried by the Deputy.

My colleague, Mr. Tatton, will address this matter but it is important to say there is not a policy in the Department to fight all cases tooth and nail. This is not our approach. Instead, the Department examines each case carefully and where there has been a gap in provision, the Department will acknowledge it. Historically, litigation was taken on behalf of children with special needs who had inadequate or no education. Most recent cases relate to demands for different provisions other than those put in place by the Department. The Department is advised on what is deemed to be appropriate provision by a range of groups, including the National Education Psychological Service, NEPS, the NCCA and independent experts. Only where there is a complete variance with the advice would we defend a case to the extent of bringing someone to court.

Chairman

I wish to ask a question, as some of the information presented to the committee has confused me. Perhaps I am not seeing the full picture.

Deputy Ó Caoláin

To get the full picture, will the Chairman allow me to ask a final question?

Chairman

Yes.

Mr. Tatton

Decisions in these cases are effectively made by the Department. The Chief State Solicitor can only act on instructions given by the Department. Often, the Department of Health and Children may be named in proceedings and would also instruct the Chief State Solicitor's office. The Health Service Executive, which may be named in respect of the provision of therapies and so on, would instruct its legal advisers. In terms of giving instructions, we act on the advice of the Chief State Solicitor, the Office of the Attorney General and counsel briefed in the case.

To reiterate Ms Griffin's statement, there is no policy within the Department to fight all cases. I have given figures on how few cases reach court. The vast majority of cases are settled prior to that stage. It was also stated in the Department's presentation that whenever possible, we attempt to settle cases with regard to parents' wishes.

Deputy Ó Caoláin

I appreciate Mr. O'Hagan's point and accept the practicalities in terms of referring to the Attorney General's office if a response of any kind issues to advise on the position. Will Mr. O'Hagan revert to the committee subsequent to this happening?

Mr. O’Hagan

Yes.

Deputy Ó Caoláin

I thank Mr. O'Hagan for his consideration of the point. Regarding further points made by the Department, "appropriate provision" was the phraseology used but our guests acknowledged there can be a difference of opinion as to what is appropriate. People are examining new and developing methods that may not already be part and parcel of the overall configuration of service delivery. People have been invited to be guinea pigs for new drugs to treat cancer. I have friends among that number and do not doubt the decisions of some people are based on desperation and the recognition that initial indicators were positive.

If we see a situation where something is working and proves to be better at delivering in other circumstances, who determines what is appropriate provision? A conflict immediately occurs because we must open our minds to changing approaches to particular special needs areas. Despite taking the view that we have a monopoly on the wisdom of any particular approach, we do not. It is all changing and we are all learning, as will the Department. To have a finite position on appropriate provision without parental and other professional input on the determination of the word "appropriate" is unnerving. Who determines it? For many people, it does not match with the identified requirements of their special needs children. While we disagree on our interpretation of downward trends, it does not mean that both of our positions are not right to some degree. A number of people probably fit in with both positions.

I welcome the lack of a policy to defend all cases and that each is considered. I would not have expected another reply and do not have a closed view of the Department's approach. It is important to say that this is the committee's task at this meeting. Regarding the attempts to settle, there is a lot of grey in this area. We are not in a position, and cannot be in terms of individual cases that have gone through the courts, to offer a further view but there are instances where attempts to settle failed and fell far short of what was reasonably sought, expected and arguably sustainable. Attempts to settle and the phraseology of "appropriate provision" fall short of what I would like to see but I thank our guests for their responses.

Deputy C. Murphy

We have just heard that the Departments of Education and Science and Health and Children will decide to defend a case. At what point would the Departments sit down with the Chief State Solicitor and say that their policy is for the courts to determine policy? Does this occur? In the early 1990s, many cases were taken in respect of primary schools, which was part of the substantial increase in numbers of special needs organisers, resource teachers and so on. The cases were often taken as a consequence of high profile court actions. If such a pattern of cases forms, would the Chief State Solicitor's office advise the Departments to re-examine the policies they are pursuing? Is communication always one way, that is, an instruction of the Department to the Chief State Solicitor instead of a dialogue?

I noted the word "choose" when the committee was told that a parent may choose a school that the Department has not predicted. The people I know would love to have a choice, but choice does not come into it.

I do not see spending on special needs assistance, resource teaching and speech therapy as a subsidy. It is an investment. Last week I was told by a parent that the ultimate aim was that a child would be a taxpayer. That is where the investment comes in. We must consider how we can make people as independent as possible. Many measures are taken in isolation without co-ordination and we do not have sufficient resources. While I understand it is the Department of Health and Children which must respond on the provision of speech and occupational therapy, it shows it is compartmentalised which leads to these actions which are avoidable.

Chairman

I wish to put two questions to Mr. O'Hagan, one on special needs, while the other is broad. In her submission Ms Griffin stated:

Provision for therapies is often sought in proceedings. In most cases the Department of Health and Children and the Health Service Executive are joined as co-defendants. There is a standing arrangement whereby costs are shared equally among the State parties.

Did Ms Griffin mean the cost of providing therapies or legal costs? I did not understand what was meant.

Ms Griffin

Legal costs.

Chairman

We have information from two sources. The CSSO states legal costs expended on its schedule amounted to €600,000 in 2003, €500,000 the following year and €400,000 in 2005. According to the information Deputy Murphy obtained in the Dáil on 18 October, the legal costs borne by the Department of Education and Science in respect of claimants in the cases settled or heard amounted to €4.5 million in 2003, €5.6 million in 2004 and €900,000 in 2005. However, that was not the total for 2005. A subsequent parliamentary question showed the figure was higher.

In addition to the figure of €5.6 million in 2004 met by the Department of Education and Science, did the Department of Health and Children pay a similar amount in respect of the same cases? Did the HSE or the health boards do so? Will the delegation give a general answer? Where can we find the composite picture? We only have the figures provided by the CSSO which accounted for a portion of the costs. If I understand correctly, the costs on the State side, borne by the CSSO, amounted to only €500,000. It appears the costs on the other side in the same cases are vast multiples of this figure. Will the delegation talk us through the figures and then deal with how the other costs can be ten times higher?

How many solicitors' firms were involved in more than one of the 72 cases initiated during the three years mentioned? Do firms specialise in such cases and have they built up expertise? One can consider this from two angles, as a firm may be building up expertise or business, on which I will not adjudicate.

Mr. Tatton

The basic answer to the question on costs is yes. The reply to the parliamentary question referred to details of what the Department of Education and Science had expended on plaintiffs' legal costs in the years mentioned. It did not include what the Department of Health and Children had to pay.

Chairman

In Mr. Tatton's own words, without figures if they are not to hand, are the costs split 50-50 between his Department and the Department of Health and Children?

Mr. Tatton

Yes, unless the facts of a case are unusual.

Chairman

Does that cover the HSE or the health boards?

Mr. Tatton

If the HSE is involved, each pays one third.

Chairman

Is it possible that some of the figures quoted amount to only one third of the total?

Mr. Tatton

It could be. It would depend on the number of——

Chairman

It could involve costs to the HSE and the Departments of Health and Children and Education and Science.

Mr. Tatton

Yes.

Chairman

Who can advise me on the three years we are discussing? Perhaps the Office of the Chief State Solicitor could do so. If the information is not to hand, perhaps it can be obtained and sent to us in written format.

Mr. O’Hagan

I was being briefed on the Chairman's second question and missed the last one.

Chairman

Regarding 2003, 2004 and 2005, only the figures for the Department of Education and Science are detailed in the replies to the parliamentary questions. Substantial costs are also borne by the Department of Health and Children and the HSE or the health boards. During that three year period 45 cases were settled out of court and three in court, which means approximately 50 were concluded during the period. I want the overall picture of the full costs borne by the various Departments. If Mr. O'Hagan does not have the figure to hand, he can send it to the committee.

Deputy C. Murphy

I can provide information on the costs to the Department of Health and Children.

Chairman

What were its costs during the period?

Deputy C. Murphy

They were less than those of the Department of Education and Science. The information is provided in a table which I can provide for the Chairman. The HSE is not included.

Chairman

I ask whoever is appropriate to supply the full picture to us.

Mr. O’Hagan

My colleague and I will consider the matter and the best way to provide the information for the committee.

Chairman

Yes.

Mr. O’Hagan

One of us must contact other agencies. I note the request and we will deal with it tomorrow.

Deputy Ó Caoláin

One would not necessarily mirror the other. They would not always be co-joined in an action taken. There will always be disparities.

Chairman

It would be nice to get a more complete picture.

The other question I asked was related to the fact that the figures for the cost to the CSSO seemed to be a fraction of what was charged by solicitors' firms and for outside legal advice. The CSSO handles one side of a case, while they handle another. The committee is not concerned about the costs associated with the CSSO; rather it is concerned about the costs for which the State is caught on the other side, which seem enormous. Does Mr. O'Hagan have information to hand on how many solicitors' firms deal with more than one case? I only want an indication.

Mr. O’Hagan

Many firms take proceedings in the cases involved, particularly those involving judicial review. Evidence also indicates a cluster of cases around a small number of firms which have developed considerable expertise in the area.

Chairman

Do some firms deal with more than ten cases? I only want an indication, not exact figures.

Mr. Tatton

One firm is dealing with more than 20 cases.

Chairman

One firm is responsible for a high proportion of cases. In which part of the country is it located? I do not want to know anything about the company.

Mr. Tatton

I probably should not state.

Chairman

Mr. Tatton need not answer if he does not want to. I will not press the issue. I do not want to identify the people involved.

My last general question is to Mr. O'Hagan and was touched on at the beginning of the meeting by Deputy Burton. Given that the CSSO meets the legal costs for the State and that most of the costs are borne directly by the line Departments involved, can the committee get a fix on how much was paid by the State in legal fees covering all activities last year? Mr. O'Hagan will understand that the question is reasonable from our point of view.

Mr. O’Hagan

I can understand that. An exercise may have been carried out by the Department of Finance and I will consult the officials of that Department in that regard. A member of my staff may have co-operated with the exercise, although I have not been informed of its outcome.

Chairman

Can we put it that the joint committee is requesting that information? If the Chief State Solicitor's office is not in a position to supply the relevant details, I ask him to advise us on who is in a position to do so. We want to know the approximate annual expenditure on legal fees, not only by the Department of Education and Science but by all Departments.

Mr. O’Hagan

May I revert to the committee on the question of whether an exercise has been carried out, which would mean that the information is readily available?

Chairman

I would be upset if one was not carried out because it would be dreadful if no State official is responsible for investigating the matter. On behalf of the committee, I thank Mr. O'Hagan, Ms Griffin and their officials for their help. To my knowledge, this is the first time the committee has met directly with the Chief State Solicitor's office. We deal with the Estimates through the relevant Minister in the normal course of events but it is good to thoroughly discuss these matters. We look forward to receiving the information we requested.

Deputy O Caoláin

The committee's members all join in the thanks expressed by the Chairman and hope that the sentiments we have expressed will inform the system.

Chairman

I am sure that most of the attendees are family people. As Deputies, we have to deal with the hardest cases. Therefore, we have genuine concerns on behalf of the people concerned. Parents' lifestyles have to completely change when these difficulties arise.

Deputy O Caoláin

I had to depart early from the last meeting of this committee because of urgent business in the House. While my back was turned, the date of the next meeting was changed by members whom I do not see here this afternoon. Could we put an alternative proposal, given that Deputy Catherine Murphy and I are amenable to upsetting them?

Chairman

While the date does not suit my own schedule, it would be unfair to the officials in the Department of Health and Children if we were to change the date of our meeting with them. I acknowledge the Deputy's point but I do not want to discuss the reasons given by members for meeting on the date in question.

Deputy O Caoláin

It was not fair of them to change the date, given that some of us had no input.

Chairman

They are involved in some official activity pertaining to the Houses of the Oireachtas.

The joint committee adjourned at 5.45 p.m. until 11 a.m. on Thursday, 20 April 2006.