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JOINT COMMITTEE ON HEALTH AND CHILDREN debate -
Tuesday, 29 Apr 2008

Superannuation Issues: Discussion with National Rehabilitation Board Pension Group.

I welcome Mr. Seán O'Brien, Ms Brege McCarrick, Mr. Rossa Ó Briain and Ms Nora Walls. Before we begin, I draw attention to the fact that while members of the committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee. Members are reminded of the long-standing parliamentary practice to the effect that members should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable. Members may ask questions after the briefing.

I ask the NRB pension group to make its presentation.

Mr. Seán O’Brien

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.

Thank you very much, Mr. O'Brien. I would like to put one question before inviting committee members to comment. Does Mr. O'Brien know why it has taken so long for any action to take place since this issue was first brought to light? He said the legal lacuna was pointed out in 2003.

Ms Nora Walls

May I answer that question? In 2000, or prior to the closure of the NRB, we were told we had no option of the abolition of office pension. Since then, as the legal situation has unfolded, it has become clear that we did have that right, that our offices were abolished. That had been denied. In 2006, we wrote to the agencies to which we had transferred. Some of us got replies stating we had no right to an abolition of office pension, while some got no reply. It was only in 2006 that the person who pursued the issue and had been obstructed through the mechanism of the State was awarded his pension. Now in 2008, our unfinished business has been brought here to, I suppose, the people's court where we would like it to be addressed, after years of obstruction. That is why it has taken so long.

Thank you, Ms Wall. I met with the group previously as Labour Party spokesperson, but I am wearing a different hat today in chairing this meeting. We will now take questions from the committee, first from the Opposition spokespersons, for whom deputy spokespersons will speak, and then the Government spokesperson. Senator Feeney has indicated she would like to speak on behalf of the Government.

I thank the committee for trying to unravel this fairly complex case in a brief period. This issue was brought to my attention almost a year ago and I am still grappling with it. The situation is quite simply that the State has denied a group of people their statutory rights, because of the manner in which the NRB was dissolved. We must bear in mind that these people are no different from the rest of us. They are people with families who were told they had to redeploy and if they did not make a decision on one of the three options — the National Disability Association, Comhairle, which is now known as the Citizens Information Service, or FÁS — a decision would be made for them. It was coercion in so far as people with young families and mortgages, like everyone else, felt they needed to take up positions that bore no relationship to the work they were doing in their roles. All but a handful of them were officers in the old NRB that was being made defunct.

It is ironic that a few years later advertisements were placed in the national newspapers seeking people to do the same jobs again. The advertisement even stated "following the dissolution of the NRB". It was denied that people were being redeployed to do the same work and yet it was necessary to advertise three years later to seek people to fill those positions. At all stages the Department and the Minister have tried to single out Rossa Ó Briain as being a different case from everyone else. That case is built on the fact that a permanent infirmity certificate was issued by a doctor who acknowledged by phone that he never met the man. He was in no position to write a certificate one way or the other determining the state of health of the individual. That should be borne in mind. That is the basis on which the Department seeks to differentiate Mr. Ó Briain's case from everyone else's.

At this stage the judge has identified the Oireachtas as the only arm of the State where the lacuna in the legislation can be addressed. I have asked on the Order of Business of the House when the legislation would be addressed. It has been denied that it is necessary. As far as I can see for as long as it can get away with it the Department will bury its head in the sand on the issue. This cannot be allowed to go on. If the social insurance fund must pay a staff member of a State company of 21 years his or her entitlements as determined by the Employment Appeals Tribunal, it is a very bad reflection on how the State seeks to do its business.

Does the Deputy have any specific questions? We are limited on time.

I am sorry if I am making a statement. I feel it is important. I have tried to raise the matter on the floor of the House a few times. While I am only a substitute on this committee, I would ask that the four points requested by the former staff members of the NRB be taken in hand by the committee and addressed. The State should have nothing to hide and should not be afraid of answering its case. At all stages it has tried to differentiate Mr. Ó Briain's case from everyone else's. I do not believe that is the case and the Department of Health and Children should open up and deal with this case honestly and frankly.

As there are no questions that need to be answered, I will call the next member of the committee.

We should group the questions.

We will take all the questions together. It is quite a complicated issue and I am sure everyone has the same concerns.

I compliment the witnesses on their presentation. I concur with Deputy Doyle in his analysis of the situation. I ask the witnesses to outline briefly what the NRB did. Are there any recent examples of severance packages being made to staff of State agencies?

If the witnesses are agreeable we will bank the questions.

I also welcome Mr. O'Brien and his delegation. I am coming new to this issue; other members seem to be more informed. I had not known of the case until the witnesses put it to us. I congratulate them on having put it across in a way that was easy to follow. It seems to be a terrible case. Mr. Rossa Ó Briain said that on that ill-fated day, 12 June 2000, it would appear standing legislation was suspended for the day and then reinstated the next. I take it that was to put the legislation through to dissolve the National Rehabilitation Board, NRB. Did that come out in the court case? Did a judge say that this is what he or she believed had happened?

The submission refers to the concept of matching job interest with qualification or skills but that it was largely ignored. For anyone that is difficult. It is bad enough for someone to have to go to another town or place of employment. If one's skill or experience is not matched, it is an added burden.

The mediator referred to in the submission recommended an exit package which was accepted. Was that accepted by the NRB staff at the time or the Government? Was the mediator present throughout and working with the NRB staff? Did the staff know their job skills and other matters would be interfered with or did this come afterwards?

How many people have been directly affected by this matter? With the exception of Mr. Rossa Ó Briain, where are those people now based? Can the committee be told a little more about the withheld exit package and how the delegation is seeking it to be restored to the agenda?

It was a long road to have to go down and to wait six years for an outcome. Was Mr. Rossa Ó Briain covered for the costs of his High Court case?

Mr. Rossa Ó Briain

Concerning the suspension of redundancy, we were told as a matter of fact that there was no redundancy. In 1997 the Government announced it was going to dissolve the NRB and set up an establishment group, which represented many Government agencies, to prepare for the dissolution of the NRB and for what would happen after the event. The issue of redundancy came up as a possibility. We were told there was no redundancy.

Perhaps that judgment was guided by the fact that all the people on the establishment group were civil servants. They did not understand that there is the concept of redundancy when a job is basically gotten rid of. I think they felt one was in the Civil Service with jobs for everybody and if one does not do this, one does that. The recognition of the redundancy legislation was obliterated. Any comments we made about it were dismissed. It was not that they were saying it was suspended on the day in question but that it was not there at all.

We were told the NRB was being dissolved because the services it provided were to be mainstreamed. We did not have a difficulty with that because many of us — all of a similar age — had worked for 20 years in the NRB. Times had moved on. We were supportive of the view that people with disabilities should be integrated into the mainstream health services. The difficulty was that dissolving the NRB and saying the services would be mainstreamed was to say that everybody was equal. Everybody is equal, but it is not the same thing to be disabled as not to be disabled. What was being proposed was to mainstream disabled people and direct them to FÁS where they would be treated as ordinary people. However, the reality is someone going to FÁS with a severe mental illness or unable to read and write is not ordinary. If one takes away the supports of an agency such as the NRB, one mainstreams the people but the whole thing falls on its face.

With regard to us, we were told we would move to a job. People moving to FÁS were told they would go as employment service officers, but their speciality with regard to disability would be dispensed with. The planning was that people would move to FÁS, Comhairle or the NDA. The committee is probably familiar with FÁS which is a training agency. Comhairle was a new organisation created at the time. It took on part of what the NRB was doing and also coincided with the dissolution of the National Social Services Board. That was an advisory service which has now become the Citizens Information Bureau and remains, largely, an information service.

The plan was that a disability support service would be created, but that was filtered down. By the time the NRB was being dissolved and Comhairle was created, nobody knew what work Comhairle would do. With regard to the NDA, it was made perfectly clear to the staff of the NRB that the NDA, which was taking over the property in Clyde Road where the NRB had its headquarters and which is worth millions of euro, would be a policy-making body. The creation of policy is a job generally given to those who are, perhaps, more within the academic sphere of life. It was made quite clear that many of us were more frontline workers and that there would be jobs going in Comhairle for some of us and it would also recruit new staff of its own.

Basically, the whole cohort of NRB staff were told they could state where they would like to go, but that the decision would be somewhat determined by where they lived and what jobs were available in the locality.

Let me speak, if I may, about Nora Walls, who is with us. Nora lived in Waterford. The NDA was going to be in Dublin, so it was not an option for her. The nearest job available to somebody of Nora's category was going to be in Kilkenny, again not in her locality. There was, therefore, no choice at all. She was told the only jobs available to her were with FÁS. That was the job available to her and she had no choice at all. Some people got jobs they liked, but for many the system took over and took control. The attitude was: "These are the rules we are going to apply and you will have to fit in with that". The jobs given to people were imposed in many cases and people were told where to go.

The mediator was and is a rights commissioner in her normal life. The first time I heard a mediator was appointed was in October 1999 when we all gathered in the conference room at Croke Park. We were met by the establishment group representing the Government and were told we were all going to be individually consulted by our senior staff about our future placement and that if there were any outstanding industrial relations problems in the dissolution process, the mediator was there to iron them out. The agreement the mediator came up with, as made clear in Mr. O'Brien's presentation, carried on the policy made in the beginning, namely, that the process would not adhere to the provisions of the superannuation regulations. There would be no redundancies and no abolition of office. Everybody was going to get a job whether they liked it or not and they would have to take it. There was no recognition that there was any law applying to the situation. Those things were simply obliterated.

The mediator came into operation in 1998-99, going into 2000. She came in at the latter end of the dissolution of the NRB and came up with a plan as to how the NRB would be dissolved and the agreement. We had been told all along that nothing changes until everything changes and that nothing is agreed until everything is agreed. Most of us here, including those in the Visitor's Gallery, were advisers. We are a particular group but we are only one group. The reality was that 47% of that group voted against the agreement. On the day they voted against it, the establishment group met that afternoon and decided that the dissolution date would be two weeks to the day. They basically ran to the Minister to get it signed off so that they could get through an agreement that basically obliterated the vote and determination of 48% of the advisory group alone. The word "acceptance" and nothing being agreed until everything was agreed were completely thrown overboard.

In the case of any of us it could be said that the job skills were not recognised. We had all come from different backgrounds. Several people had been teachers or social workers, or had different careers in the past. We had all worked for many years in disability. Working in the area of disability is not like working in any old job. It requires knowledge and the different skills to deal with people as members of the committee know. As public representatives they know the issues that are coming to them. Regarding the job skills we had acquired, employees of FÁS were brought in as employment service officers whose job is to ascertain what job is available for that person regardless of whether he or she is disabled. The reality is that today 66% of disabled people are still unemployed. Nothing has changed.

Regarding the exit package, which I believe was the last point raised, the mediator said the exit package, if there was to be one, would be compatible with whatever arrangements the Department of Health and Children made with other agencies. One has since been made with the HSE in respect of the chief executives when the health boards were amalgamated into the HSE. It is not unusual. For instance agencies such as RTE, Bord na Móna and the ESB rationalise occasionally and if an area is overstaffed they come up with a package. The package of exit can be under two headings. One is an ex gratia payment to allow people to get their act together again. The second aspect relates to pension entitlements.

In our case we were told the exit package would not allow for abolition of office pensions, but if there was to be an exit package it was to be compatible with Department of Health and Children arrangements. I will try to explain what that might have meant in tangible terms. In my case it took me six years of extremely hard work and it is not finished even today. This struggle with the State started nine if not ten years ago. The exit package I eventually managed to get — not because I am a very nice person or because I am not a very nice person — I got by law. I got an abolition of office pension, which entitled me to a pension because I paid my contributions. None of my colleagues have that because it is being withheld from them all.

The other element was getting an ex gratia payment. An adviser, as I was, with the rank of a higher executive officer, for instance, in the Civil Service, was paid approximately €62,000 a year. In the case of the HSE it decided to pay an ex gratia payment equivalent to six months’ salary which came to approximately €31,000 and it agreed to pay €10,000 to retrain for employment. For me if I were to get it — of course I have not got it — it would mean €40,000. I have applied to the Department of Health and Children for that amount and it is giving me the usual run-around that it has been giving me for the past eight years in respect of that and everything else. That is yet another obstacle. Whenever I ask a question, it gives me an answer to a question I did not ask. The whole thing has become chaotic.

Ms Brege McCarrick

Senator Prendergast asked about the work of the NRB. It was a semi-State body, fully funded by the Department of Health and Children and employed 185 staff at 18 locations which tended to be high profile such as Clyde Road in Ballsbridge, Dublin, the old Dominican Convent in North Great George's Street, Dublin, and off St. Patrick's Street, Cork. They were mainstream locations because we were trying to ensure disability services were viewed as integrated and mainstream.

We provided direct services such as occupational assessment, vocational assessment, guidance and employment placement for people with intellectual, physical and sensory disabilities and mental health problems. The NRB allocated funding to vocational training programmes, as well as co-ordinating EU funding of approximately €24 million per annum. The programmes had an accreditation system which introduced standards for the delivery of all training programmes for people with disabilities to ensure their qualifications were at least as high as for those in the able-bodied population. We were responsible for approving such programmes and monitoring them to ensure they met specific standards. We provided hearing test and psychology services for children and adults.

The NRB was also responsible for advising the Government on policy matters. There was a national library on disability issues with a research service. We had an education programme on disability with schools, partnership groups and employers which included disability awareness seminars. We promoted the national disability awards scheme and were heavily involved in providing information on standards for access of disabled persons to buildings. We had a national resource centre to allow people with a disability to check what aids and appliances were available to them. The NRB provided a comprehensive range of services, was involved in cross-departmental working and the promotion of the quota scheme in the employment of people with disabilities. It was involved in everything around disability services.

On the dissolution of the NRB, staff went to five organisations. Up to 33 staff members went to the National Disability Authority, 61 to FÁS, 57 to Comhairle, and 27, mainly radiologists involved in the hearing test service, to the Eastern Regional Health Authority. Some went to the National Educational Psychological Service. After eight years, we cannot say exactly where all the people concerned are now. Unfortunately, some are deceased, some retired, while others have moved on to work in other jobs.

Regarding other exit or retirement packages in the public service — rather than use the term "redundancy package" — when the HSE was established, the chief executives of the health boards were offered abolition of post packages. Each received ten added years' service plus six months' salary and €10,000 to retrain. I am aware other staff in the HSE would also have received this package. It was offered by the Department of Health and Children which also ran the NRB.

This is the first time I heard of this matter with the NRB. From the presentation, it seems the delegation has a genuine case. When the NRB was dissolved, the staff only had one option — to be transferred. Pension and redundancy rights were removed. Did the staff carry their rights from their years of service to their new employment positions?

On recourse to the law and all that, were there not test cases, given the norms in semi-State bodies down through the years? Abolition has happened before, and in the event, was there not recourse to the law? Mr. O'Brien has explained this to some degree. If he won his case, did that not mean the other 184 people had the same entitlement as Mr. O'Brien? Perhaps I am interpreting this incorrectly and he can answer in a minute.

The delegates are seeking acknowledgement by the State of the legal right to an abolition of office pension. Can they clarify abolition of office pension and the legal lacuna, as they call it? It says here that the Employment Appeals Tribunal, EAT, was incorrect in attaching responsibility to the Minister for Health and Children. Surely, there is a legal case to answer if a court said that the EAT was wrong in attaching responsibility to the Minister.

On the reference to a competitive independent person being appointed, who might fill that role to deal with outstanding issues? Is there need for legislation to allow the Minister for Health and Children to change this and fulfil the delegates' requests? What legal process is needed to establish all outstanding issues?

These are general questions, so that I can be more familiar with the situation and appreciate what is going on. What do the delegates hope to gain from meeting this committee? We do not have legislative power. All we can do is use our influence and make reports to the Dáil. What can the committee do to help the delegates' case?

I thank Deputy Aylward. We shall just hear Senator Buttimer's questions before coming back for a final round of answers.

I shall be brief because many of my questions have been asked already. Given the mediator's report and what it recommends, can the delegates say why it was disregarded? Like other members, I am just reading it for the first time and I am enthralled by it. It seems to me that this is government by quango. There is no political accountability. There is no departmental responsibility and we are dealing with individual people who have given service to the State, in many cases as part of a job — but not as a job per se. As someone who has been involved with disability centres in Cork, I certainly came to understand the NRB and the work it did. It was a mistake to get rid of it, but that is a personal viewpoint. Having said that, is it not extraordinary that in November 2005 it took, perhaps, a series of parliamentary questions to find out that an abolition of office pension was confirmed by the HSE? Suddenly, the former Minister for Health and Children, Deputy Martin, did not accept any responsibility, and passed the buck, left, right and centre. The then Attorney General recognised there was a legal problem, and nothing has happened, so why has that been the case?

What happened to the assets of the NRB when it was dissolved? Where did they go to and how were they disposed of? Everything seemed to happen on that ill-fated day, 12 June — and nothing happened at all. In terms of the whole issue of rights, will this be norm in the abolition of other semi-State agencies, with rights taken away? This is a grave injustice to decent people, by those who should know better. It is symptomatic of the disaster as regards the treatment of people by the HSE and the Department of Health and Children. It is not good enough. There should be answers and the people before the committee today deserve more respect than they have been shown by agents of the State.

Mr. Rossa Ó Briain

I shall deal, briefly, with Deputy Aylward's question as regards the legal case. The legal case before the High Court was an appeal by the Minister of the finding of the Employment Appeals Tribunal. The current Minister for Health and Children appealed it, although she had denied having any responsibility for NRB in the first place. The appeal was not sustained, but an important point made by the High Court judge was that the Employment Appeals Tribunal had been wrong in attaching responsibility to the Minister for Health and Children. It was also pointed out that SI 170 and SI 171 concerning the NRB did not make any provision for the redundancy element. In other words, once the NRB was gone, there was no State entity, Minister or Government body to which a former staff member could appeal in respect of redundancy.

With which Department did our guests work?

Mr. Seán O’Brien

The Department of Health and Children. The then Minister, Deputy Martin, dissolved the NRB, became the Minister for Enterprise, Trade and Employment and continued passing the buck. We are not here to make a political point, but we need the matter dealt with. The judge interpreted the statutory instruments specifically and found that the omission could only be corrected by the Oireachtas, as the High Court did not have a role in doing so. This is the reason we are appealing to the committee. After this lacuna is addressed, everything else will follow.

We were asked why we are not pursuing the legal route. As an individual, I do not have a body, Minister or Department to whom I can make a case because a High Court judge has decided that provisions were not made in the statutory instruments. Whether deliberate or otherwise, there was an omission. After 12 June, the Department and the then Minister washed their hands of the matter. We have no course of redress. Mr. Ó Briain will provide more details.

Senator Buttimer referred to assets. Even were this issue conceded to us, how could a State pay what we are due? When we were dissolved, our assets were distributed to other agencies. The NRB was an asset-rich organisation. I worked in a small office in Tullamore, one of 17 regional offices that was recently sold for €1.4 million. I will not even mention Clyde Road, North Great George's Street, Cork, Limerick, Waterford, Wexford and so on. State assets worth approximately €200 million have been transferred to other organisations. When Mr. Ó Briain's redundancy payment was made, it came from the social insurance fund as if he had been redundant during the——

Despite the report to the mediator.

Mr. Seán O’Brien

Yes.

Mr. Rossa Ó Briain

On 12 June 2000, the NRB was dissolved and SI 170 and SI 171 of 2000 assigned staff and properties to various entities. In 2004, the Employment Appeals Tribunal, following the High Court case in 2003, designated the NRB (Dissolved) as being the entity responsible for my redundancy situation. How does one assign responsibility to a non-entity? There was not a pencil left of the many millions of euro in properties that had been recently refurbished with new computers and so on. The value was astronomical.

I have a copy of a cheque given to me by the Department of Enterprise, Trade and Employment for €5,700. A related irony is that, when we were before the High Court judge, the then Minister for Health and Children — he was the plaintiff while I was the defendant — sought costs. The judge was perplexed because the Minister was looking for costs from the social insurance fund, which was administered by the Department of Enterprise, Trade and Employment. One Minister was looking for another Minister to pay the costs. On a technicality, the judge told the Minister to suit himself. The social insurance fund, into which we all pay so that a lump sum can be paid to anybody made redundant by a bankruptcy, had to pay the Minister the costs he incurred through his senior counsel and legal team, as well as for the barrister who represented me.

The assets were given to everybody else. Mr. O'Brien raised the example of Tullamore, which was sold for €1.25 million, and the other properties given to agencies such as FÁS, Comhairle and the NDA. Several other properties were given away over the years and rather than being used, they were subsequently sold or thrown to the wind.

On 25 January 2000, six months before the NRB was closed down, a meeting was held in the Department of Health and Children at which there was speculation about what would happen subsequent to the implementation of what we now describe as chaos. The plan at the time was to close the NRB in March, although they only got around to closing it in June. The minutes of the meeting stated that from March 2000 the responsibility for rehabilitation training was to rest with the health boards and it would be up to them to secure the resources they needed to take over the services managed at the time by the NRB. The minutes also noted the difficulties that could arise given that no NRB staff were moving to the health boards. The Department was planning the demise of the NRB and throwing to the wind the NRB's millions of euro worth of properties in high street locations, its staff expertise in disabilities and its effective network of back-up psychological services. It did not even plan to keep any staff within the ambit of the health boards, apart from the audiology service. It gave it all away, while mandating the health boards to take over the service without resources or staff. The entire matter was cock-eyed and the upshot was that the costs had to come from the social insurance fund and the Department of Enterprise, Trade and Employment.

I wish to return to the issue of redundancy and abolition of office. When the NRB was dissolved, we were faced with personal predicaments because most people lacked the resources to move to nothing. Redundancy legislation has been in place since 1967 — which ironically is the year in which the NRB was set up — to address the repercussions of jobs being made redundant. It should be noted that jobs not people are made redundant. The rules of redundancy require a case to be initiated before the Employment Appeals Tribunal within two years of redundancy, which meant that by the time my case was concluded, everybody else in the NRB was out of time. The other prerequisite for bringing a case for redundancy to the Employment Appeals Tribunal is termination of employment. My employment was terminated for me under the most peculiar of circumstances, which in effect meant that I was not in an employee relationship with the State at the time. I fulfilled two prerequisites in that I was within two years of the closure of the NRB and I was no longer in employment.

When my case came before the Employment Appeals Tribunal, the State sent five legal teams to represent FÁS, Comhairle, the NDA, the Minister for Health and Children, who was represented by the Chief State Solicitor, and the health boards. The sixth party to the claim was the NRB which, as the deceased body in the room, was not represented. The defence of redundancy by these legal teams cost the state an absolute fortune but it is clear now that the State realised redundancy as we know it under legislation also means abolition of office. If one knows nothing about redundancy or abolition of office, one does not know much about employment law. That is what happened in respect of the establishment group. They made no provision for redundancy law at all or the abolition of office arrangements. They basically obliterated it.

I won at the Employment Appeals Tribunal, despite all the brilliant and bright lawyers, who sat in front and beside me because there were so many of them. The State, through the Minister for Health and Children, brought me to the High Court in an attempt to overturn the judgment of the Employment Appeals Tribunal that I was redundant because the Minister knew very well that if I was redundant, my job was abolished. If my job was abolished, I was potentially entitled to an abolition of office pension.

In 2003, three years after the NRB was dissolved, the High Court indicated that in the case made to the tribunal, I was redundant. I wrote to the health board to see my abolition of office pension. The State decided it would then sit on it, consulting with the Chief State Solicitor and Attorney General. I have a copy of the advice from the Chief State Solicitor giving an account of how the Attorney General and Chief State Solicitor made it perfectly clear in 2005 that on foot of the High Court judgment and the Employment Appeals Tribunal, I had won redundancy and I was entitled to an abolition of office pension. That was on 29 October 2005. Speculation continued and I have procured, under freedom of information, letters and e-mails from within the Department of Health and Children. These speculated on why I should not get the result of the High Court judgment on the abolition of office.

We went from the judgment of the High Court to the judgment of the Attorney General, which came in 2004. On 17 October, 2005, Deputy Kenny — whom I did not know other than from television but to whom I had written about the problem — asked a parliamentary question seeking the reason I was not getting my abolition of office pension. Within two days of that, the pension was approved, five years after it was due. It was eventually paid in May 2006, two years ago, with payment retrospective to 2000, the date on which I was entitled to it.

With regard to Deputy Aylward's question about the need for legislation, the difficulty is the High Court has indicated there is a lacuna in the law. Who do we talk to? I have written ad nauseam to the Department of Health and Children asking if it is its responsibility. It continues to tell me the High Court has indicated there is omission and exonerates the Minister. That is that.

I have asked under freedom of information, or through Emily O'Reilly's Office of the Ombudsman, that if a decision is made by the State about me as a citizen, I am entitled to a reason for the decision. The Department of Health and Children argues it did nothing to cause a decision about me, and it did not perform an act which caused a decision and so it does not have to answer the question.

Despite the fact that the Minister for Health and Children, by signing SI 170 and SI 171 of 2000, dissolved the NRB, he did not do any act which dissolved the NRB. He was able to give away the many millions of euro worth of NRB properties but he did not do any act to cause that to happen. They were vested in him and his name is all over the instrument which set up the NRB in 1967. His name is all over the instrument which dissolved the NRB in 2000.

There is a gap. All my colleagues were corresponding as well in other issues with which I still have to deal with the Minister for Health and Children. As with another political person last week, it is like playing handball against a haystack. In our particular case it is even worse. When I asked the Department of Health and Children who had the responsibility for the NRB, it sent me a copy of the statutory instrument setting up the NRB, and it indicated I would be sent an administrative reply. Finding the reply was like finding a needle in the haystack. When I put my hand into the haystack and pick out the needle, I am told it is not a needle at all but a rusty nail. There is nowhere to go and the whole issue is absolutely absurd.

I will continue for a moment. Arrogance stopped the mediator's report being implemented and it was said I would get nothing. They were the authorities and we were people with children, mortgages, this, that and the other. We basically had no rights or abilities to challenge what was being done. In my case I had four children, all of whom were at school. I have had ten years of struggle, day in, day out, and this continues to this day. I still await a letter from the Labour Court that may arrive today. When I was out at work my children were at home and when my children were at school I was at home. We could not see each other because I worked at night and at weekends to pay the bills, but that is another story. A great deal must be done.

The daft thing is, and Deputy Doyle referred to this, in May 2001 my job as a National Rehabilitation Board, NRB, adviser was advertised in the health boards. The advertisement begins "following the dissolution of the NRB, the health boards, in collaboration with FÁS, will provide occupational guidance to people with disabilities". My job was being advertised in newspapers within nine months of the dissolution of the NRB. I was interviewed for the job in July 2001 and three weeks later proceedings began at the Employment Appeals Tribunal, which I eventually won. The Health Service Executive, HSE, discovered that it gave me the job at a salary of €7,000 less than I was paid for the same job by the NRB. I entered the public service in 1979.

When it was discovered that I got the job and was also appearing before the Employment Appeals Tribunal the HSE stopped communicating with me and this continued for three and a half years. I knew at this point that something very peculiar applied not only to the Department of Health and Children but to the HSE. They were trying to obstruct the appointment.

The jobs of NRB staff were coming back into vogue. Regarding the positions of members of staff today, some got their old jobs at lower salaries, some are dead and some have retired. The arrangements they could have had on retirement were cut short. There were people who, by definition, could never have had 40 years' service in the NRB because it only existed for 33 years. We are all approaching old age and some of these people have been deprived of years of remuneration. This applies to almost everyone sitting in the Visitors' Gallery today and my colleagues before the committee. They have all, individually, been deprived of rights and the State will continue to withhold those rights if the Oireachtas does not start with the basics of this matter.

Going back to the point of what needs to be done relating to the omission, we must clarify who will take responsibility for this legal chaos and absurdity. Deputy Doyle raised a question in the House and the response was that people can take individual cases to the courts. They can do this. The Minister for Health and Children took me to the High Court and I felt great fear and trepidation. It is estimated that the State has spent at least €200,000 to €300,000 fighting me in the courts. I do not have the money to respond to this and nor do my colleagues. We want the Oireachtas to take on this issue and study the mess the State has made, which started in the Oireachtas when the defective dissolution instruments were signed. The Oireachtas must go back to where this started and accept it was done incorrectly. We do not seek heads on plates; we simply want an acknowledgment that this was done wrongly. We want to see how this has impacted on individuals.

I will not intrude on others in this regard any more than I would want them to intrude on me. The impact has been grave and must be addressed through four points. Through the Oireachtas we seek acknowledgement, we want the omission corrected and we would like a reasonable, rational person to be appointed to examine this matter and resolve it under the headings abolition of office, the unco-ordinated status, the exit package and the fourth heading.

Mr. Seán O’Brien

On the points raised by Deputy Aylward regarding what can happen, it must be acknowledged that we were denied our rights. That is the first point and it must be acknowledged by some Department. Somebody has to say that this happened and that those responsible should put up their hands. It has been through practically every court and procedure in the land at this stage. The legal lacuna must be examined. Even if it is acknowledged, we still have no redress unless the matter is sorted legally. We need a competent person, perhaps a senior official in the Employment Appeals Tribunal or the Labour Court system — there are several people who have been there for years who have dealt with situations throughout the country. Mr. Phil Flynn is one who comes to mind and there are others at that level who are able to stand back from the issue, who have the ability to unpick it. That is the type of person required.

Deputy Aylward mentioned the abolition of office. To clarify, that is found under appendix 9, page 51. We paid into that on an individual basis, depending on our salary level. We had no choice but to pay into it as it was a condition of employment. It specifies the instance of a registered officer of a local authority who, with not less than ten years of pensionable local service, is removed from office for a cause other than misconduct, unfitness, etc., and whose office is abolished or whose position is materially altered. It states what the process should be if that happens. If there are more than 20 years of service, ten extra years are added, if there are fewer than 20 years, half of that service is added. That is a right under law but one which was denied to us. That is a legal provision according to the 1998 scheme but it was denied to us, legally. This is our bottom line.

The members should turn to appendix 8. I apologise for repeating this but on 12 May 2006 the HSE sent a letter to Mr. Ó Briain. The second point of that letter states that his pension is based on the abolition of office and that his pensionable service is based on actual years of service plus ten years in respect of abolition of office. The State has therefore acknowledged that situation in writing. We are claiming that the rest of us should have the same right and we should not have to trawl through every court in the land to get our rights specified. We do not have the money or the energy for this. We are just ordinary people trying to make a living but the State has taken us on and has denied this pension to us. Yet only two or three years ago it paid it to staff in the former health boards in order to set up the HSE, and did so in other similar instances. What has happened meanwhile is that the same Department has decided to take us on as a group and deny us that money. We are appealing to the committee, as an organ of the Oireachtas, to try to move this situation along.

How many people are concerned? Who was the previous mediator?

Mr. Seán O Brien

The number of people employed at the time was 185. The abolition of office pension specifies that it relates to those with ten or more years of service. I estimate that this concerns the majority of those people. I do not have an exact figure but it refers to that group only. The mediator was Ms Janet Hughes who was appointed by the Government and who is the current Rights Commissioner. The mediator was there just to make recommendations but we were surprised that one of the recommendations she made was that the abolition of office pension could not be paid. She had no right to state that, nor had any Minister the right, nor anybody else. It was the law of the land at the time.

I thank the committee for giving this time to the former NRB staff. They have asked for a four-point plan. The committee's task is to kick-start that process. I have a letter dated 1 February from the Minister's office on foot of a contribution made on 18 December. It still seeks to differentiate between the case of Mr. Ó Briain and everybody else, on foot of a permanent infirmity exit, if that is the correct term. There is no justification for it and it is the excuse being used at the moment to differentiate Mr. Ó Briain from everybody else. It is not factual. There was an abolition of office. This committee must, by whatever mechanism, initiate a complete review of what happened, must fix those two statutory instruments, return to SIs 170 and 171, and look at the lacuna identified by the High Court. It must, by some mechanism, go back and allow that legislation to be addressed. It is the legislation in the Houses of the Oireachtas that has to make this happen and following that, everything else will fall into place. Unless there is a willingness here to allow that happen we will be in the same position in two years.

Mr. Seán O’Brien

Deputy Doyle spoke about the letter, a copy of which was forwarded to both Deputy Doyle and the Vice Chairman. We were astounded to see that letter given all that we have been through, including going through the High Court. We have it in writing that this man's pension was paid by the HSE and for the Minister for Health and Children to come out on 1 February 2008 and revert to a situation where this man was retired on permanent terms is an absolute insult. I am not necessarily blaming the Minister, but it shows the intransigence of whoever is advising her and assisted with the writing of that letter. It was absolutely absurd.

I received a copy of the letter too. I thank the delegation for enlightening the committee as this is a complex area and it was important that we had the time to tease out the issues. The members received a clear picture of the situation. The delegation has given the committee the four recommendations, which we must take to the next meeting where we can discuss the options. I do not think we can make any formal decision today, so we must put it on the agenda for a future meeting. I wish to give an undertaking on behalf of members of the committee that we will do this, and the committee will endeavour to have this issue addressed in the necessary way following all these years that the delegation has been fighting this battle. I thank the delegation and members of the committee.

I propose we put this issue on the agenda for discussion at the next meeting.

I second the proposal.

I was going to make that suggestion.

The joint committee adjourned at 12.50 p.m. until 11 a.m. on Wednesday, 7 May 2008.
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