I thank the Chairman, Deputies and Senators for this opportunity to present our case to the committee. I am aware the committee has been very busy, particularly in the recent past, so it is a privilege to be allowed to attend this meeting. I have circulated a document to all members of the committee. The colours on the right hand side indicate the appendices to which I will refer during the meeting. Each appendix is numbered and the page numbers, from one to 55, are at the bottom right hand corner.
The National Rehabilitation Board, NRB, was dissolved by the Government through the then Minister for Health and Children, Deputy Micheál Martin, by means of Statutory Instruments 170 and 171 on 12 June 2000. We can give the committee more details on the nature of the NRB if members wish to ask specific questions about it later. The budget and assets of the NRB were transferred to other Government agencies. This was in line with the mainstreaming policy adopted by the Government on foot of the 1996 report of the Commission on the Status of People with Disabilities. We have no difficulty with that policy. What we are dealing with today is a separate matter.
A total of 185 people were employed by the NRB when it was dissolved. The vast majority of them were reassigned by ministerial order to work in other State agencies. For many, their new jobs had no commonality with their NRB work or speciality. In many instances, decisions on work type allocated to people were made on the basis of geographical distribution of NRB properties around the country or the location of various State agencies. The concept of matching job interest, qualifications or skill with the new duties was largely ignored. The bottom line, however, is that staff were refused their legal entitlement to an abolition of office pension as provided for in the Local Government (Superannuation) (Consolidation) Scheme 1998. The National Rehabilitation Board Pensions Group represents a substantial number of former NRB staff members and this delegation has been selected to present our case to the committee.
The reason we sought to present our case to the committee is the finding by a judge of the High Court that there was an omission in the regulations which dissolved the NRB. Only the Oireachtas can address that omission. It was a serious omission. I refer the members to appendix No. 6, pages 43 and 44, of our submission which describes the omission in legal terms. It states: "There seems to be no provision in the statute or statutory instruments to provide for people in the position of the defendant in this case." The defendant was Mr. Rossa Ó Briain, whose case was appealed to the High Court. Unfortunately, the fact that there was no provision for the defendant also applies to every former member of staff of the NRB. It was a serious error of judgment in the legislation and, as is clear from our document, the error has been brought to the attention of several Ministers but no action has been taken.
I will briefly describe the Local Government (Superannuation) (Consolidation) Scheme. All of the staff on an individual basis contributed to this scheme, according to their salary level. It was not a general scheme. This scheme specifically provides for an abolition of office pension. Section 66(1)(a) refers to a situation where a person's office is abolished and section 66(1)(b) refers to a situation where a person's position has been materially altered. They are the specific provisions. That scheme is outlined in appendix 9, page 51 and is clearly laid out. In these circumstances — and this is specifically what happened to NRB staff — the scheme allows for the granting of an abolition of office pension with up to ten years' added service depending on the service of the individual.
In the dissolution process, NRB sought their entitlements under this scheme. These entitlements were unilaterally refused to them as a matter of policy. I will go on to prove that this was invalid.
We have clear evidence of this policy, which is very serious. I refer to appendices 1, 2, 3 and 4. If members of the committee look at appendix 1 on page 9, it states clearly at the end of that page that "The group proposed the inclusion in the staff transfer protocol of a commitment that there would be no involuntary redundancies and specifically that there can be no general entitlement to early retirement."
Appendix 2, page 22, is very serious and is from the appointed mediator. At the top of the page it states "I therefore recommend that an exit package should have regard, where appropriate, to the provisions of the Local Government Superannuation Acts [as I have just described] which govern the pension terms of the NRB staff [and this is very important] with the exception of those terms relating to abolition of office." No mediator, public servant or Minister would have had the right to say "with the exception of those terms". In other words, they suspended the Local Government Consolidation Scheme 1998 for one day, on 12 June 2000. Nobody had the right to do that, but it was done and we were denied our rights completely on that one day. It was reinstated the following day.
There is also a hand-written note in appendix 3, page 28. This was a note to my colleague, Mr. Rossa Ó Briain, from Mr. Brian McKeane who was the personnel manger of NRB. I will not read it in its entirety but it states that there will be no concession upon abolition of office pension and that this has been confirmed by the various Departments and the establishment group.
Appendix 4, page 30, is a very important one. Mr. Rossa Ó Briain wrote to the Department of Justice, Equality and Law Reform in regard to the policy. This was a Freedom of Information inquiry. It clearly stated that "The evidence he [that is, the investigating officer] found was that the policy of the establishment group was to oppose the offering of such terms", in other words the terms of an abolition of an office post. That was the official policy of the Department and the Government at the time.
It has since been established that this policy is totally invalid. I refer to appendices 5 and 6. Appendix 5 is the finding of the Employment Appeals Tribunal. That tribunal found that Mr. Ó Briain, who took the case, was made redundant.
Appendix 6 concerns the High Court case. The Minister appealed the decision of the Employment Appeals Tribunal to the High Court which did not sustain the appeal. The High Court confirmed that, in fact, Mr. Ó Briain had been made redundant.
I will refer briefly to Mr. Ó Briain's case, which is a very serious one. It probably encompasses what happened to many of the staff members. One staff member, Mr. Rossa Ó Briain, decided not to accept a transfer to another organisation and requested his abolition of office pension — that is, under section 66(1) of the scheme. He was denied the right in writing but in order to deal with the situation with which he was confronted — in other words, Mr. Ó Briain would not leave the organisation — the State created extra medical evidence without this person's knowledge in order to facilitate a disguised retirement under section 66 of the scheme, namely under permanent infirmity. He discovered the full circumstances of his early retirement 13 months later. He pursued the nature of the determination to the Employment Appeals Tribunal in 2001, which determined that he had been made redundant — that document is enclosed there — and that he should be paid his redundancy lump sum. The State appealed this case to the High Court but the judge ruled that he had been made redundant and his job had been abolished. Even after this ruling by the High Court, however, the Department of Health and Children refused to pay him his pension and even ignored the subsequent advice of the Chief State Solicitor's office, which had been advised by the Attorney General.
It was only following a parliamentary question to the Minister that the Department finally agreed to comply with the ruling of the EAT and the High Court. Mr. O'Briain's abolition of office pension was finally paid on 12 May 2006. It, therefore, took from June 2000 until May 2006 to vindicate his rights. This was despite the fact that all the machinery of the State had been used.
Appendix 8 contains a letter to Mr. O'Briain from the HSE which confirms that an abolition of office pension — not an early retirement or any other form of pension — was paid to him following advice from the Chief State Solicitor's office and the Attorney General.
I will briefly outline the political background to this matter in order to illustrate the problems that occurred in the context of the Oireachtas addressing this matter. In June 2000, the then Minister for Health and Children, Deputy Martin, dissolved the NRB through SI 170 and SI 171 of that year. The drafting of these statutory instruments was within the remit of the then Attorney General, Mr. Michael McDowell, SC. In October 2000 the then Minister refused to answer any questions in respect of responsibility for the NRB.
In 2003, the Minister for Health and Children appealed the decision of the Employment Appeals Tribunal to the High Court but that appeal was not sustained. The High Court ruled, however, that there had been an omission in the statutory instruments used to dissolve the NRB and that no Department or body had responsibility for unfinished business regarding matters relating to the newly-defunct NRB. The judge in the case stated:
There seems to be no provision in the statute or statutory instruments for people in the position of the defendant in this case. However, it is not the function of the Court to correct that omission.
He went on to specify that the said function was the responsibility of the Oireachtas.
In September 2003, the then Minister for Justice, Equality and Law Reform, and former Attorney General, Michael McDowell, recognised that a legal problem existed. He brought the matter to the attention of the then Minister for Health and Children, Deputy Martin, at a Cabinet meeting. Appendix 7 contains a letter from Mr. McDowell which states "I have arranged for a copy of all the correspondence with you to be made so that I can personally hand it to Mr. Michéal Martin at a Cabinet meeting". Therefore, two Ministers discussed the matter at a Cabinet meeting in September 2003 but nothing happened subsequently.
In October 2005, Deputy Kenny tabled parliamentary questions to the then Tánaiste and Minister for Health and Children, Deputy Harney, and the Minister for Enterprise Trade and Employment, Deputy Martin, concerning the payment of the pension to Mr. O'Briain. In November of that year approval of the abolition of office pension was confirmed by the HSE. In December 2005 the Minister for Enterprise, Trade and Employment suggested to Deputy McManus that responsibility for the residual issues relating to the NRB came within the remit of the then Tánaiste and Minister for Health and Children. However, that assertion was not accepted.
In December 2007, the Minister for Health and Children, Deputy Harney, stated in the Dáil that there were no outstanding issues in respect of redundancy in the NRB. She agreed to arrange a briefing for Opposition spokespersons with officials of her Department. Despite written requests from those spokespersons, this briefing has not yet taken place.
As stated earlier, one member of staff took a case to the Employment Appeals Tribunal, which found that there had been a redundancy in the NRB in 2000 and attached responsibility for this to the Department of Health and Children. The Department appealed this decision to the High Court in 2003 but that appeal was not sustained. The judge in the case again referred to the lacuna I mentioned earlier. The latter creates crucial difficulties and the effect of it is that even though an NRB staff member was made redundant in 2000, no live entity was responsible for the redundancy. The individual's redundancy lump sum was paid out of the resources of the social insurance fund. This is usually done in the case of a bankrupt employer. However, the person in question was employed by the State for 21 years. We expect the State and various Ministers to uphold the law but that which I have outlined is what happened.
Former NRB staff contend that an abolition of office pension is a legal right. This should be in line with the provisions of the Local Government (Superannuation)(Consolidation) Scheme 1998. This right is being denied to them and because of the omission in the law — this is important — there is no Department or public body to whom former staff members can take their case. It is not acceptable that law-abiding, hard-working, conscientious former staff members should have to take on the might of the State to have their rights which are specified in law, vindicated.
NRB staff paid contributions for many years for an entitlement to an uncoordinated pension. This status entitles them to a social welfare pension at age 66, in addition to their standard superannuation pension. However, because of the changed process, some staff members have been stripped of this right. This right must be restored to all former NRB staff.
The mediator appointed at the time of the dissolution of NRB recommended an exit package in 2000. That person, appointed by the Government, stated there should be an exit package for all staff who wished to avail of it. This recommendation was accepted by the parties at the time, but the exit package was withheld from all staff. Since the dissolution of the NRB, no State entity exists to accept responsibility for this or any other issue relating to its former employees. The provisions of an exit package must now be made available.
What do we seek now in appearing before this committee? First, we seek an acknowledgement by the State that former NRB staff were denied their legal right to an abolition of office pension. This is something we have never got, despite all the legal processes. Second, we seek that the legal lacuna identified by the High Court be addressed as a matter of urgency. Third, we want a competent independent person to be appointed to deal with outstanding issues and with staff on an individual basis. Fourth, we want a legal process established to finalise all outstanding issues, some eight years on from when they commenced.