The disabled drivers scheme began in 1968 as a tax relief for drivers who suffered from a permanent disability, mainly affecting those with traumatic spinal cord injury and lower limb amputation who were largely dependent on a wheelchair for mobility. The scheme was extended in 1979 to include disabled passengers with severe disabilities, and this included babies and children who had severe permanent mobility disability and who fulfilled the strict medical criteria. In 1990, the Disabled Drivers Medical Board of Appeal, DDMBA, was established by the Department of Finance to review individuals whose application for the primary medical certificate, PMC, was unsuccessful at local HSE level.
Section 92 of the Finance Act of 1989 enabled the Minister for Finance to make regulations providing for repayment of excise, road tax and VAT in respect of vehicles used or driven by persons who are severely and permanently disabled. In 1994, the disabled drivers and disabled passengers regulations introduced the six medical criteria. The regulations state "the eligibility on medical grounds of disabled persons who are severely and permanently disabled shall be assessed by reference to any one or more of the following medical criteria". It is important for the committee members to hear these six medical criteria the DDMBA was obliged to use to assess persons appealing the decision not to grant the primary medical certificate. They were:
(a) persons who are wholly or almost wholly without the use of both legs;
(b) persons wholly without the use of one of their legs and almost wholly without the use of the other leg such that they are severely restricted as to the movement of their lower limbs;
(c) persons without both hands or without both arms;
(d) persons without one or both legs;
(e) persons wholly or almost wholly without the use of both hands or arms and wholly or almost wholly without the use of one leg;
(f) persons having the medical condition of dwarfism and who have serious difficulties of movement of the lower limbs.
It does not take a medical qualification to know that the language used in these criteria is bizarre and the criteria are very restrictive and exclude many people with genuine, severe and permanent disability from accessing supports. For example, the person with weakness on one side of the body from a stroke, traumatic brain injury or cerebral palsy may be excluded, as may the person with an amputated or absent upper limb, or a child with physical or neurological and development disorders who needs specialised seating. These are just some examples among the many people who have genuine disability and require an adapted vehicle but do not qualify under the medical criteria.
Persons wishing to avail of the disabled drivers and passengers scheme are first assessed at community level by community doctors. If deemed ineligible at this level they can appeal the decision to DDMBA. The board operates independently of the assessment process carried out by the local HSE community medical officers. The members of the Disabled Drivers Medical Board of Appeal are medical practitioners appointed by the Minister for Finance on the recommendation of the Minister for Health for a serving period of four years.
The adjudicating panel at all clinics comprised the chair and two ordinary board members. In the years between 2010 and 2019, only between 1% and 8% of persons were successful at appeal hearing with the Disabled Drivers Medical Board of Appeal.
I was appointed chairperson of the DDMBA in 2015 as part of my appointment as a consultant in rehabilitation medicine in the National Rehabilitation Hospital, NRH. Concerns about the restrictive and inequitable nature of the medical criteria were expressed by my predecessors. Within the first year of my appointment, at interactions with the Department of Finance I expressed my strongly held view that the scheme needed to be changed. In June 2018, the board formally wrote to the Department of Finance laying out our concerns about the inflexible and discriminatory nature of the criteria and the need for the scheme to be revised or updated. We did not receive a reply despite expressing our willingness to discuss further. I continued to link with the officials in the Department of Finance on a regular basis and meetings were held in the National Rehabilitation Hospital and the Department of Finance at which I repeatedly outlined our concerns about the difficulty in fairly applying the criteria and the inequitable nature of the scheme. The DDMBA also had regular requests from the Office of the Ombudsman in relation to complaints made to it in respect of the decisions taken by the board.
In June 2020, the Supreme Court found against the Disabled Drivers Medical Board of Appeal and the Minister for Finance in an appeal brought by two persons who had not been granted a primary medical certificate at an appeal hearing. The court went on to quash the board’s decision and granted a declaration that in applying the criteria set out in regulation 3, in other words the medical criteria, to the appellants the board failed to vindicate their rights under section 92 of the Act. As stated by the Minister for Finance, Deputy Paschal Donohoe, in an answer to a parliamentary question in July of 2021, "The judgement found that the medical criteria set out in the Regulations did not align with the regulation making mandate given in the primary legislation to further define criteria for ‘severely and permanently disabled’ persons."
All assessments for the primary medical certificate were suspended at community level and at the DDMBA following the Supreme Court ruling. I engaged regularly with the Department of Finance between June and November 2020 via telephone, email and video link. During this time, I repeatedly expressed my opinion that the Supreme Court decision further vindicated our concerns about the medical criteria and emphasised the importance of progressing rapidly with a comprehensive review of the scheme and complete revision. During this time, the Minister’s official responsible for the scheme had advised me that the Minister planned to have new legislation prepared in time for the Finance Bill 2021. It is my recollection that in September 2020, his official also spoke to me about a plan to insert the existing medical criteria into primary legislation. I expressed my view that I and the other board members would not be willing to continue to use the existing medical criteria after the Supreme Court ruling and that I felt this approach was a retrograde step. The Minister for Finance made the decision to make an amendment to the Finance Bill 2020 to allow for the existing medical criteria in primary legislation. The legislation was amended without any notification to the DDMBA and I only became aware of this change when allied health staff in the National Rehabilitation Hospital informed me in late 2020 that assessments for the primary medical certificate would resume in January 2021.
In December 2020, I wrote directly to the Minister for Finance on foot of this change to the legislation to express our concerns about the course of action taken by him. I also again expressed our concerns about the lack of any significant action on a new scheme for disabled drivers and passengers in the six months since the Supreme Court decision. To quote my letter, "the DDMBA have unanimously stated that they will not be able to assess appellants for the PMC using the same medical criteria whether in legislation or not given the recent Supreme court ruling and their long- held view that the scheme is inequitable". The Minister wrote back to me on 21 January 2021 and requested that we reconsider our decision to avoid "directly penalising applicants who otherwise may have their cases successfully appealed by the Medical Board". I wrote back to the Minister in March 2021 and advised that we would be willing to resume appeal hearings to clear the backlog from 2020, a period during which public health measures meant that appeal hearings were suspended. My letter stated:
[H]owever, continuing new hearings on the basis of the existing medical criteria after the backlog of current appeals is cleared is fundamentally a wrong way of continuing our work in equity and disability terms for disabled drivers and passengers. It is very important for the members of the DDMBA to see substantial progress being made towards a new scheme for disabled drivers in a timely manner...
I asked the Minister to meet with the DDMBA and, to quote my letter again, "to give us reassurance that our concerns are heard and that you fully understand the inadequacies of the current scheme and the urgency of devising a new scheme for disabled drivers".
Members of the DDMBA met the Minister and his officials on 29 March 2021 via video link. During that meeting, the Minister acknowledged the validity of our concerns about the scheme. He made a commitment to put time into a process that would yield a scheme that better met the needs of those with disability. He also talked about the need to deal with this issue in the Finance Bill in December 2021. He told us he had been in contact with the Minister for Children, Equality, Disability, Integration and Youth, Deputy Roderic O’Gorman, to see if his Department would co-chair a review with him in relation to these issues. He also said that if that Department was not going to participate or did not get back to him quickly, he would get this work under way within his Department. Overall, the Minister accepted that there were issues and recognised that the board was making decisions that were even more demanding than they should be. He accepted the validity of the points we made and said he was going to put time into getting the scheme to a better place during the year. Due to these reassurances, I told the Minister that the DDMBA would be willing to clear the backlog of appellants from 2020, but that we were very reluctant to see new appeals from January 2021 until we saw substantial progress on a new scheme. I had also indicated this to him in my letter of March 2021.
Appeal hearings with the DDMBA resumed in April 2021. In ensuing months, we worked through the backlog of appellants from 2020 as agreed following our meeting with the Minister. Between July and September 2021, there were an unprecedented number of complaints made to the Ombudsman in relation to our decisions not to grant primary medical certificates. There was no demonstrable progress on a new scheme for disabled drivers and passengers during this time and I remained in contact with officials in the Department of Finance.
The scoping exercise talked of in the autumn of 2020 by Department officials had not yielded anything despite assurances that they would soon forward documents to me in November 2020. On 2 September 2021, more than five months after our meeting with the Minister, I wrote again to the Minister requesting an update on progress towards a new scheme for disabled drivers and passengers. On 9 September 2021, I spoke to a Department official responsible for the scheme and he admitted that there had been little or no progress. On 14 October 2021, having received no indication of any significant progress on a new scheme 16 months after the Supreme Court ruling, I wrote to the Minister giving notice of my intention to resign on 11 November 2021 when the last appeals clinic was scheduled to clear the cohort from 2020. As I stated in my resignation letter, as a medical professional who in my clinical role cares for people with disability and makes every effort to advocate on their behalf, I could no longer participate in a scheme that is unfair and denies assistance to people with genuine disability. I remained in post until 30 November to deal with any paperwork or issues resulting from the last clinics. Within 24 hours of my notice of resignation, two other board members had resigned and the remaining two board members tendered their resignations within weeks. On the day I gave notice of my resignation, and after the Department of Finance had received my resignation, I was sent a letter from the Minister in response to my letter of 2 September 2021 requesting an update. Unfortunately, this letter did not alter my decision to resign.
Since December 2021, I and two other members of DDMBA have participated in a subgroup to review the disabled drivers and passengers scheme set up by the Department of Finance. My understanding from Department officials is that it is agreed that our review will come under the national disability inclusion strategy, NDIS, working group tasked with reviewing all Government-funded transport supports for those with disability. I and other members of the DDMBA have repeatedly expressed our willingness to lend our experience and expertise to devising a new and fairer scheme.
I believe this statement demonstrates that the decision to resign from our positions on the DDMBA was a difficult one for board members and it did not happen without us making every effort to highlight the inadequacies of the scheme and to repeatedly advocate for comprehensive revision. We have always tried to engage constructively with the Department and the Minister to try to push for change. Unfortunately, on professional and ethical grounds, I felt my position as chairperson was untenable as I could no longer preside over a scheme that was inequitable and there seemed no urgency to even start the process of change.
