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Seanad Éireann debate -
Tuesday, 13 Jun 2006

Vol. 184 No. 1

Health (Repayment Scheme) Bill 2006: Committee Stage.


I move amendment No. 1:

In page 3, lines 17 to 21, to delete subsection (3) and substitute the following:

"(3) This Act shall come into operation immediately on its passing into law.".

I welcome the Minister of State, Deputy Seán Power, and his officials to the House. I understand my proposal that "This Act shall come into operation immediately on its passing into law" is the norm. I am not sure why such latitude is being given to the Minister to decide when exactly it will be implemented, especially considering that it has taken a year and a half for her to introduce it in the first place and that she is primarily responsible for having introduced flawed legislation in December 2004, which, I am thankful, was ruled unconstitutional by the Supreme Court. I hope the Minister of State will look favourably on my amendment.

I do not accept this amendment because it does not allow for a commencement order for a certain section of the Bill. A general commencement order can be made to allow for commencement of all provisions of the Bill. The inclusion of the provision to allow commencement orders will allow, if necessary, the commencement of a provision of the legislation before the legislation is enacted. The company may begin to work on the scheme prior to the enactment of the legislation if a commencement order deemed section 12 to have commenced on a date prior to the enactment of the Bill.

A similar amendment was proposed by the Senator's colleague, Deputy Twomey, in the Dáil. It was debated at some length and rejected after due consideration.

I support the amendment. That successive Governments, and not just the present one, have shown such astonishing reluctance to include in legislation a date on which it would come into force serves as the most appalling commentary on the inefficiency of our whole system of government. Governments are most reluctant to deal with amendments that do not cost a lot of money when one tries to get them to agree to a certain deadline for the implementation of the legislation. Even if Senator Browne had included "six months' time" or "12 months' time", at the latest, the Government would have opposed it. The Government should bring legislation passed by the Oireachtas into force within a reasonable period. It is a great pity the Supreme Court held that essentially the Oireachtas can pass legislation and, provided the clause is included, the Government can sit forever on legislation. That is an appalling reflection on our system of governance.

I have nothing further to add. There is no need to go over what I said earlier. I outlined the reasons for the delay in bringing forward the legislation. We hope to have the legislation enacted as quickly as possible to ensure the process of processing the applications can commence quickly and allow the people receive their money as quickly as possible.

A sense of urgency is needed in terms of legislation coming through these Houses because there have been too many examples in the past of something being permitted but nothing happening for a long time. When I first became a Member of this House I sought a date, regarding legislation on authorities that were being established, for the publication of their annual reports and I found there was great reluctance to do that. Now, admittedly, a date is put down each time. This amendment is worthy of support and I urge the Minister of State to reconsider it.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Section 1 agreed to.
Section 2 agreed to.

I move amendment No. 3:

In page 6, subsection (1), line 5, to delete "including" and substitute "being".

This amendment proposes enabling the Health Service Executive to enter into an arrangement with anybody to carry out the repayment to people of money stolen from them. It is worded in a way to ensure the service can be contracted out to a private body if the HSE so wishes.

I listened to the Minister of State when we discussed this matter on Second Stage and he said the problem was that the HSE did not have the resources to do it. If a private body is to be contracted to do it, will it do it free of charge? The Minister of State knows that is not the case, therefore, the private body will also have to have resources given to it. From where will those resources come? Will they come from the HSE because the private body will not do it for nothing? It will do it for a fee, which will be substantial and include a reasonable margin for itself. The Minister of State's idea was that if the HSE did it, it would have to take resources away from some other area but will the Government pay for this body? It will not do so. The HSE will have to provide for this out of its budget.

What we are getting is the belief that the HSE can somehow manage to buy in the expertise cheaper than it can by allocating some of its own resources but that means money being taken from something else. We know the HSE is not exactly awash with money. We only have to ask the people of the north east who are undergoing the prospect of dramatic cutbacks in health services, including the non-employment of an oncologist, which is ironic given the rhetoric about cancer we got yesterday.

The fundamental question is where the money will come from to pay for this process. Will it come from the HSE, in which case it is simply paying it out, or from the Government, in which case the Government is saying it will give it to a private organisation but not to the HSE?

My amendment seeks to keep this provision within the public sector. I am not too hung up on the amendment, nor am I too hung up on who does it provided somebody can give me a plausible reason it would be better to have a private organisation do it than to give the HSE the extra resources to do it. That is what I would like to hear an answer on. Why is this way better and who will pay for it?

I listened carefully to what Senator Ryan said and found the case he was making interesting but I cannot accept that he has made a sufficiently valid case. It appears to me, and I am sure the Minister of State will say, that we should leave the door open for whatever is the most efficient, cheap and sensible way of getting it done. If we accepted the wording in the amendment, it would exclude the possibility of looking for the best value and from that point of view, I do not believe Senator Ryan has thought this one through sufficiently. Normally, he speaks with a very level sensible hat on but in this case it does not appear to be——

Has it fallen off?

I am inclined to agree with Senator Quinn. The sun seems to have affected Senator Ryan.

The Minister of State should not start. I will take it from my colleague beside me but I might not take it from a Minister.

I do not accept this amendment because it would not allow for the appointment of an outside company to administer the scheme. The Government decision allows for the appointment of a company to provide an independent input into the process. The public tendering process has been implemented and the HSE decided on the appointment of a preferred service provider at a meeting of the board on 1 June 2006. In accordance with normal tendering procedures, no information can be made public on the preferred service provider until an interval of 14 days has elapsed and there has been no substantial query or objection from any of the unsuccessful bidders.

The HSE has also stated its support for the decision to engage an outside company as it is not in a position to administer the scheme because the making of repayments on this scale is not its core work and the resources required to administer the scheme are not available within the HSE, given its extensive commitment to the provision of health services without diverting staff from their normal duties.

Consideration was given by the HSE to the involvement of public sector staff to assist it in administering the scheme but the HSE has indicated that approach was not taken due to the potential industrial relations difficulties. The requirement to assign dedicated HSE resources to supervise these staff and remove them from their normal duties, the time constraints of the public procurement process and the potential for significant logistical difficulties and protracted delays, will have to be factored into the tendering process of the companies who are to take these staff on board.

The cost of employing an outside company has not been established but the funding will not come from the HSE. The cost of hiring a company will come from a special account which is being established. It is not a matter of taking X amount out of some particular service this year to pay for the hiring of the company. We realised at the start of the year that this cost would have to be met and it will come from the Exchequer. There is no magic wand, as the Senator knows. This is an unusual case. It is the biggest and most expensive repayment case the State has ever undertaken and because of the fact that the State was found guilty, so to speak, of taking money from people without the authority to do so, it was important to have an independent company involved. In an ideal situation we might not have to employ a company but in this case the right decision was made to use the resources of an outside company in assisting us with repayments.

We now know something. We know that the Government does not know how much this outside agency will be paid. I thought somewhere along the way we had got a commitment that this would never happen again and that we would not allow these sorts of dangerous, open-ended contracts to private sector advisers, supporters, consultants or experts because of what happened with PPARS in particular. We now have a situation where somebody has been chosen by the HSE to do the job. Incidentally, a week ago the Minister said that a fortnight had to elapse. As it was before a week ago that the appointment was made, the 14 days is probably up. Perhaps somebody could tell the House the name of the company.

It would be nice if the Dáil, which will ultimately vote the money, knew to whom it is voting it. I want to know how the HSE picked somebody to do this job without, apparently, the Minister responsible knowing how much it would cost. If ever there was an argument for keeping matters within the tight constraints of the public sector, what the Minister of State just said vindicates it. We know that somebody has been picked to do it and the Government does not know how much it will cost. It was quite clear that whoever is being affected by our present climate, it is not I.

I support the words of the Minister of State and indeed, those of Senator Quinn. Those who will deal with these matters are people who have been involved in the tendering process. As a consequence, it is reasonable to assume that the optimum value will be secured for and on behalf of the State. There is no point in going into histrionics as to why this money has to be paid back. Everybody knows that and all Governments are culpable in that regard. The reality is that this is the way to proceed. I am in favour of the reasons, as outlined by the Minister of State and indeed, Senator Quinn. It is a question of value for money and I believe the measures that have been selected will deliver that.

I was anxious to address this section. I spoke on this issue at a meeting of the Fianna Fáil parliamentary party and the Minister of State, Deputy Seán Power knows this. As a former Minister of State at the Department of Health, I do not understand why outside consultants are necessary in this case. I have made the case already that there are hundreds of members of the HSE. I am very surprised that the HSE is not aware of what staff actually do at community welfare office level as regards the assessment of medical cards. I made a simple suggestion to the effect that all reviews of medical cards should be postponed for the period required to assess the repayments to the participants involved in this particular campaign.

This is not rocket science. I am constrained because of my position as a Fianna Fáil Senator. I may speak on the actual amendment, but when it comes to a division of the House, I must vote in a particular way. That does not stop me, however, as a member of the Fianna Fáil Party from telling the HSE what I believe. I am appalled, incidentally, by the bonuses given to the chief executive, given that we cannot come up with some degree of originality in so far as this issue is concerned. I would say to the staff and officials who are in the House, that I cannot understand why people are reviewed for their medical cards every year when there is no need for it. Nothing new will happen within one year, general speaking, as regards a person's income. Still, he or she has to face this embarrassing medical card review, having to put his or her case every year to the community welfare officer, when circumstances have not changed. The same staff employed in this regard should be located in each county or area to assess the number of people eligible for these repayments, for better or worse.

I have strong reservations as regards the judgment of the Supreme Court, because I served in the Department as well and I felt that most people were satisfied with the payments, the charges and the services they were receiving. However, the Supreme Court does not seem to have regard for the economic situation in this country or the demands to repay this. I have a constituent who will be receiving a repayment for the last ten or 15 years. He has asked me to check his father's repayments because he was also in a home for a number of years. Between the two of them a nice little fund will be accruing to the account.

No great rocket science is involved in asking the community welfare officers and the staff dealing with medical cards to process and assess the situation and to let the Department of Health and Children, which seems to be semi-redundant because of the HSE, oversee the situation and come up with the payments required for the individuals involved. It is as simple as that, but it is ludicrous to spend €50 million on a private outside company which knows nothing about the system of operation of the former health boards, the HSE and the Department of Health and Children. I served in that Department in my capacity as chairman of the Western Health Board and as a Minister of State and I would not be giving this role to outside bodies. I see no reason for it. I make this late appeal to the Minister of State.

The Senator has strayed considerably from the amendment.

I have not and I will say why.

I believe I have to make the decision here.

I want to put it to the Minister of State that I have read somewhere that €50 million has been estimated in this regard. I regard €50 million of our money as €50 million on top of what is being repaid. At this late stage I am asking the Minister of State and the Government to review this situation and let matters be dealt with in-house by the HSE and the appropriate services involved. I made that appeal at the Fianna Fáil parliamentary party meeting in private and I am making it now in public because the people are there——

Might I make a suggestion?

I am making the point and asking the Minister of State——

The Senator has made the point very well. He could, perhaps, put down an amendment on Report Stage.

At this stage, I am quite happy to discuss matters——

The Senator could put down an amendment on Report Stage.

I am very grateful for the Acting Chairman's advice.

I, too, agree with the previous speakers. The Department of Agriculture and Food pays out enormous sums every week to farmers and the Department of Social and Family Affairs makes considerable payments every week as well. I query why we have to go outside the HSE or the Department of Health and Children for this payment. That is done already and we cannot undo matters. Senator Leyden is somewhat late in calling for matters to be reviewed at this stage.

I was not. I asked before——

I know he asked before, but on today's date, he is somewhat late. I am very concerned, however——

I ask Senator Browne to address this amendment. He can table an amendment on Report Stage.

Here we are in the House, a week later, and we still do not know who has got the contract and neither do we know how much it will cost. Can the Minister of State say what controls and checks are in play? Have we learnt anything from PPARS? Have we learnt anything from the redress board as regards a Bill that was originally to cost taxpayers €200 million and has now risen to €1.1 billion? The argument about the appointment of the outside firm is a somewhat different business, but I am concerned about the checks and balances in place to monitor and supervise this. If it is to be €50 million, what happens if it turns into €100 million? Will someone be culpable or will he or she be reprimanded?

I must ask the Senator to address this amendment and he can table an amendment on Report State, having raised matters on this Stage.

The Government decided to appoint an outside company, and I have explained the reasons behind that. Despite what Deputy Ryan has said, it is not an open-ended contract.

The Minister of State does not know how much it will cost, though.

The HSE was given the job of——

The Minister of State does not know how much it will cost——

Will the Senator please listen to me for a second?

The Minister of State, without interruption, please.

The HSE had the job of recruiting a company to assist in the repayment scheme and it initiated a tendering process. That first tendering process was terminated because it felt it was not getting value for money. A second tendering process was advertised and a number of companies expressed interest. The HSE indicated that the second batch of tenders was much more competitive than the first. A figure of €50 million has been mentioned. This is a nice round figure and easy to remember, I suppose, but it is not going to be the colour of €50 million. The company has been picked and——

Is the Minister of State on or off the record?

I am quite happy to speak on or off the record, but I am giving the Senator the facts. The board met on 1 June and the company was selected. Under the rules that must be observed, there is a 14-day cooling off period to allow other companies to raise objections to the appointment, which will be completed within two days. The name of the company will be made known, as will the costs of employing it. The contract is over a two-year period, but it is not open-ended, and there was a cap on what the HSE could spend on the process.

This is the first time we have embarked on a scheme of this magnitude. The HSE indicated it was not in a position to administer the scheme on its own. There will be checks and balances in place and a number of reports will have to be presented before the Minister. The council will also be audited by the Comptroller and Auditor General.

Is the amendment being pressed?

I was not going to press it, but I may do so now. We do not know how much this will cost. We do not know what the cap was nor do we know the identity of the company and we have been given spurious reasons for this. As Senator Leyden said very well, there is a myth that the HSE is not involved in any schemes to pay out money, but it is involved in schemes. The Minister of State tells me that the HSE is not able to do something that it is doing. It pays out money for community welfare, it assesses people's means for medical cards and it has been doing this for 40 or 50 years.

At the back of all this is the Tánaiste's ideological agenda to privatise the health service and this is a test case. I do not care about that because I can argue with it on intellectual grounds. However, it is offensive to present this House with an intellectually unsustainable argument. If there is a reason for doing this, I will listen to it as I do not have ideological baggage. Like Senator Quinn, I believe that what is most efficient is what should be done. I am singularly unpersuaded that what is going to be done will be more efficient. I am utterly unpersuaded that it will be more cost effective and because of this, I will press the amendment.

If the firm has not completed the work after two years, will there be another tendering process? The Minister of State spoke about an open book but I am more confused than ever. This tendering process was advertised and 11 expressions of interest were received. These were short-listed to three but were not deemed to be suitable, so it was re-advertised. There was much suspicion about the whole process, especially on the Government benches. Is the Minister of State categorically saying that the firm that won the contract was cheaper than the others? Will the firm turn out to be cheaper in the long term?

I will not let on that I am familiar with all the details of the companies that tendered. I tried to give the House as much information as possible on the number of companies that tendered for the second process. It is up to the HSE to decide the most competitive, most efficient and the best tender on offer. I assume it will have done the job well and the company chosen will have some experience of large repayments. While I cannot disclose the figure, the sum of €50 million mentioned by a couple of Members in this House and by others last week is wide off the mark. We were told by the HSE that a significantly lower figure was accepted and will be paid to the company. The contract is for a two-year period and we expect that the repayments will be processed during that period.

I do not want to make the Minister of State's life difficult, but he has been delegated powers in the Department and he has them signed, sealed and delivered by the Tánaiste. However, I am missing a point. Why is this in the Bill if the decision has already been made and the contract awarded to a company? Would it not be more appropriate if the Bill was passed by both Houses, signed by the President and then the contract awarded? That is why I made strong representations to the Government not to go ahead with this. That is my personal opinion and it would be easy for me to sit back and not have any view about it. As Senators from the Government party, we have a right to make our views known.

Of course I will vote with the Government on the issue, but I am sure the Minister of State will realise that this is our duty and that we can help the Government by pointing out all that can be teased out in this House. I do not want to see a company awarded a contract and then have it taken away because the Bill has not been passed.

It must be appreciated that the time of HSE personnel also costs money. The HSE has stated clearly that it is not in a position to deliver on this service and that must be respected. I do not believe that utterances are made without due consideration. I agree with the Minister of State and Senator Quinn and I respect the views of Senators Ryan, Browne and Leyden. The time of a public official also costs money. It is a question of the service being delivered within the shortest possible space of time and the optimum value for money given.

The process which is being embarked upon is the correct one. I respect the right of those who differ from me but as someone who has worked for a long time in the public service, there is a popular misconception that public service time does not cost anything. It certainly does cost money as it is very important time. If the HSE personnel had been involved in this process, they would be neglecting to do other work. The HSE decided — I am sure after due consideration — that it was not in a position to do this and advised the Government to go down another route. The HSE representatives have shown honesty and responsibility in this matter. I support the Minister of State's position and that of Senator Quinn.

I do not wish to stifle debate but we have been on this amendment for over half an hour. There are many amendments to be debated and people will be disappointed if we do not get through them.

Can I take it that under the two-year rule, the company awarded the contract must finish everything after two years? What happens if the work is not completed after two years? I put in an FOI request on this issue a month ago, but I have yet to receive any information on it. We are working in the dark and it is incredible how clandestine the operation has been. We do not know how much it costs and we do not know who got the tender after a 14-day process. We are led to believe that nobody has objected yet, but we do not know for sure. Will the Minister of State publish the documents in the interests of openness and transparency? He should give Members the information available so that we are in a better position to form an opinion. There is no point in asking this of the HSE because I will not get an answer, despite going down the FOI route. It is utterly frustrating as an Opposition spokesperson.

The impression could be given that we have staff in the HSE twiddling their thumbs with nothing to do, but nothing could be further from the truth. We have no idle staff in the HSE. We spoke to representatives of the HSE in the early stages and they indicated that they were not in a position to administer this scheme. They stated their support for the decision to engage an outside company to help in the repayments. It was our intention to appoint the company earlier than envisaged but we will not delay the legislation or the repayments. We would appreciate the support of all parties in both Houses and we are keen to pass the legislation as quickly as possible and to begin the repayments at the earliest possible date.

We are not trying to hide anything, but a certain procedure must be followed for the tendering process when the name of the company is not known. The Senator will know the name of the company involved and the cost of the contract within 48 hours. If there is any other relevant information he wants to know about the company, I am sure the HSE will be prepared to provide it. It is not the case that we are trying to hide anything. A certain procedure must be followed, and we are following it. There is no desire on our part to keep any information from the Senator.

The contract is for two years and we expect the work will be completed within that period. If at the end of the two-year period it is considered there is further work to be done that would require the advice and assistance of the company, it would have to enter into new negotiations at that stage. The current contract into which the company has entered is for a two-year period.

Is there a penalty clause in the Bill in the event that the company does not deliver on the work within that timescale?

The Minister of State does not know that.

We will provide all details of the contract at the end of the 14-day period. Within 48 hours we will be able to provide the Members will more information than it is possible for me to give to them here today.

I gather Senator Ryan is pressing the amendment.

I wish to ask one question on the amendment. Did the Government instruct the HSE to put performance indicators into the contract against which the efficiency of the contracting party would be measured?

Securing value for money was the priority of the HSE when it sought tenders for the appointment of an outside company.

The answer obviously is that it did not.

The same could be said about PPARS, which was supposed to save money in the long term.

Nothing has been learnt.

Question, "That the word proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Question proposed: "That section 3 stand part of the Bill."

I understand that everybody who is due to receive a repayment will have been in a public hospital. That represents the overwhelming bulk of those concerned. Therefore, their records will be held by the HSE. An outside body will now have to trawl through those records. It will either ask the HSE for this information, in which case employees of the HSE will have to dig through their records and do the work of this outside agency, or alternatively the body will need to have access to all the records of these hospitals to carry out the work. How will a private body suddenly work from the offices of, say, St. Vincent's Hospital in Athy where my mother is being cared for, as the Minister of State is aware? It is a classic example of a wonderful publicly provided hospital for older people.

This process is about people applying for repayments and their records being checked. Who will do the drudgery of checking the records? If it is to be the HSE, it will do most the work for which another body will be paid. If it is not the HSE, private individuals, who do not know their way around the town of Athy, not to mention St. Vincent's Hospital, will have to be trained in order that they can trawl through the records. That has all sorts of implications for privacy, data protection and other matters.

I increasingly believe that this process has not been thought through. What will happen is that an agency will design and issue a glossy form and when the forms are received, the agency will pass them to the HSE which will have to do the drudgery of finding out whether the applications are valid.

I understand court cases are pending in regard to people who secured beds in private nursing homes who would have chosen a bed in a public nursing home but they were not available and a second choice or last resort was made whereby a son or daughter, for example, secured a bed for their mother or father in a private nursing home. We all know the result of a judgment in a court case being different from what is envisaged. Has the Minister of State provided in the Bill for a successful outcome in those court cases? If a person, whose relative was put into a private nursing home as a last resort, the person having tried to secure a bed for his or her relative in a public nursing home, such as St. Vincent's Hospital in Athy, but was unable to do so because of a lack space, were to successfully challenge the legislation in court, it would have major implications for this Bill. In that event, in regard to section 3, the terms of reference of the agency in charge of administering the scheme would widen considerably. Has the Minister of State taken account of that?

In regard to the modus operandi of this scheme, in the case of the Sacred Heart Hospital in Roscommon, the staff have the records of the patients there and will have to give a breakdown of the patients who were there, when they were there, their eligibility to qualify for payment under the scheme and to whom the money refunded should be paid. When repayments are made I hope the recipients will have an opportunity to spend and enjoy it.

I may have strayed from the issue, but I am speaking on the section and I hope the Acting Chairman will allow me to make this point. In large nursing homes there is not a common room, a canteen where one could have a refreshment, or a shop where one could buy a daily, weekly or local newspaper, or a drink. I know the Acting Chairman may rule out of order the point I am making.

The matter is not covered by this section.

Will the Minister of State, who has responsibility for older people and for these homes, arrange for a review of facilities available for the elderly in them to ensure that such facilities are provided to enable them to spend the money that will be refunded rather than having to leave it to their families?

I suggest the Senator tables an amendment on Report Stage.

I appreciate that but I did not get an opportunity to contribute during the Second Stage debate.

I am aware of that but I cannot do anything about it.

I accept that. I know the Acting Chairman's position and I do not want to make her job difficult.

We are making very slow progress.

I will not make matters any more difficult for the Acting Chairman.

I cannot let the Senator make a Second Stage speech over and over again on this Stage.

On Deputy Ryan's point, it will be the responsibility of the company to dig out the records. However, as the Senator is aware, under the legislation introduced in December 2004, we included an ex gratia payment of up to €2,000. In that respect, slightly fewer than 11,000 people received that payment, the cost of which amounted to €21 million. We have the number of the records available in that context. It will be the responsibility of the company to access the records and scan them for the purpose of repayments.

On Senator Browne's point, the Supreme Court decision was quite specific on the people who are entitled to repayments. On foot of that decision this legislation was introduced. We are clear on who will be entitled to receive the repayments.

On Senator Leyden's point, we will give priority to the people who are living in that we will ensure their claims will be processed first. As to whether some of them will be in a position to enjoy spending the money, I am sure some of them will and some of them will not. We will pay out the money as quickly as possible. The Bill provides for a special facility in terms of people do not wish to claim the money. They can put it into a fund which can be used for the purposes which the Deputy mentioned.

To pay the HSE.

I thank the Minister of State for that response.

Question put and agreed to.
Section 4 agreed to.

I move amendment No. 3:

In page 7, before section 5, but in Part 2, to insert the following new section:

"5.—Nothing in this Act shall be used to deny repayment of recoverable heath charges to any person who has received care in more than one long stay institution if that person would otherwise have been eligible for such repayment.".

This amendment covers the right of people who have stayed in more than one institution to recover payments.

This is an interesting amendment but the Minister of State outlined exactly how the scheme will operate as a result of the Supreme Court decision. As to whether somebody else takes another action in this regard, that is another day's work. People who could not secure a bed in a public institution and had to rely on the local private nursing homes have a grievance. The Minister of State is aware of that because I am sure he has received representations to that effect in his constituency.

I am not in a position to accept this amendment because under the provisions of the Bill applicants can already claim recoverable health charges from more than one institution. The Bill allows any recoverable health charge to be reclaimed under the scheme. This refers to the amount paid of a charge imposed on a person with full eligibility under the Health Charges for Inpatients Services Regulations 1976, as amended in 1987, or a contribution for inpatient services under the Institutional Assistance Regulations 1954, as amended in 1965. Deputy Twomey tabled a similar amendment in the Dáil where, after some discussion, it was rejected.

Amendment, by leave, withdrawn.
Section 5 agreed to.
Sections 6 and 7 agreed to.

I move amendment No. 4:

In page 9, but before section 8, to insert the following new section:

"8.—Without prejudice to the generality of section 7,

(a) a determination as to a person’s eligibility for a repayment of recoverable health charges shall be made as soon as is reasonably possible and in each case no later than—

(i) 28 days after an application has been lodged, or

(ii) the commencement of this Act, whichever is the later, and

(b) once a determination has been made as to a person’s eligibility for a repayment of recoverable health charges, such a payment shall be made as soon as is reasonably possible and in each case no later than 28 days after such a determination has been made.”.

This amendment seeks to create a new section which refers to the determination and repayment time limits. This Government does not strike me as being obsessed with deadlines and achieving targets. It has taken a year and a half to reach this stage. We are very quick to tell people when to pay their taxes, or pay back social welfare or agricultural overpayments, yet the State takes no responsibility to pay out on time. If someone owes money he or she should repay it. In this case the State finally and reluctantly admitted it owed money but no one has any idea when it will be paid back, even after determination has been made.

It is not unreasonable to allow for a payment to be made 28 days after a determination has been made. Not alone have the people in question waited a year and a half for this legislation but in some cases they could have been waiting since 1998. There should be a sense of urgency about this but I do not get that impression from the Minister of State or the Bill. I hope he will accept this amendment.

The Minister of State will not be in a position to accept this amendment because it is not practical. Every case is separate and each application must be properly processed to ensure that the taxpayer's interests are protected. The Minister and the Minister of State, and their officials, have assured me of this point. Private consultants were brought in to speed up the process. Deadlines would make the process more difficult.

The Minister has also assured me that the €2,000 has been repaid. Has everyone who was eligible received that sum? Nobody has told me he or she has received it, which is interesting. I must check this myself. Senator Browne's amendment, unlike that of Senator Ryan, is not practical.

The House should read section 17 which states:

(1) Where it comes to the knowledge of the scheme administrator that—

(a) all or part of the payment of a prescribed repayment to a person has been procured through fraud or misrepresentation, or

(b) there has been an overpayment of a prescribed repayment to, or in respect of, a person, then the scheme administrator shall make a report thereon to the Executive.

(2) Where it comes to the knowledge of the Executive . . . then the amount of that prescribed repayment so procured, or of that overpayment, as the case may be, shall be repayable to the Executive on demand . . .

In this instance the State does not delay or say it needs a reasonable time to administer or investigate the repayment. When the executive discovers that somebody owes it money because of a mistake under this scheme it wants the money back immediately. When somebody whose money has been taken by the State makes an application it will not consider any deadline, whereas in the converse situation the State wants the money back on demand or it will bring the person to court.

That is the content of section 17 which is an example of the way the State, in my 25 years here, has consistently believed that there is one rule for the people from whom it wants something and another when people want something from it. This Bill would have been a wonderful opportunity for the State to say it must deal with the issue efficiently. I thought the objective of privatising the service was to give people efficiency but what we will get is the worst kind of public sector obscurantism, without any attempt to make the State accountable. Section 17 says it all.

The scheme will be administered somewhat differently from what the Senators indicate. Not alone will the people receive the moneys illegally taken from them but they will also receive interest. Applications for repayment will be processed and the person will receive notification of the amount to be repaid. On receipt of that letter the person has 28 days within which to decide to accept or appeal that decision. If a person feels that he or she is owed more money he or she can appeal the initial decision, otherwise, the cheque is issued immediately on receipt of acceptance.

We have provided €400 million this year for repayments and if more money is required we will get it this year. We have no desire to withhold the money any longer. Once a decision is made, we hope the money will be paid out as quickly as possible. Apart from the moral issue, the longer we delay payments the more they will cost because interest is also due. Those people who are still alive will receive priority and we hope to process their claims as quickly as possible. I cannot accept the claim the Senator is putting forward.

One of the greatest crimes of which this Government is guilty is abuse of the English language, in phrases such as "shortly", "as quickly as possible", "imminently". We have all received replies containing these phrases and assume they refer to weeks or days yet months or years later we find ourselves waiting and realise we have been hoodwinked. While I accept the Minister of State's reply, I do not understand why timeframes cannot be set. Senator Ryan brought home how the Government is quick to demand money from people but will not pay it with the same speed.

It is important to specify time limits in legislation on this issue. I am sick of receiving replies from the Department of Health and Children and the Health Service Executive using the words, "shortly", "soon" or "in the near future". Tabling matters on the Adjournment is a joke because we rarely get a straight answer.

I cannot be any straighter than I have been. The Senator's proposal is ridiculous. When an application is processed and a figure arrived at, the applicant is notified. It would be impossible to pay the person within the 28 days because he or she has that period to appeal or accept the payment. The Government has no intention of delaying it any longer. If we accept the Senator's proposal and notify someone on 1 June and do not pay until 1 July we could leave ourselves open to a legal challenge. This type of amendment ties us down unnecessarily. We are providing the money and the people to administer the scheme and we intend to process the applications as quickly as possible and to return the money.

Amendment put.
The Committee divided: Tá, 15; Níl, 26.

  • Bradford, Paul.
  • Browne, Fergal.
  • Burke, Paddy.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Finucane, Michael.
  • Hayes, Brian.
  • Henry, Mary.
  • McDowell, Derek.
  • Norris, David.
  • O’Toole, Joe.
  • Ross, Shane.
  • Ryan, Brendan.


  • Brady, Cyprian.
  • Brennan, Michael.
  • Callanan, Peter.
  • Cox, Margaret.
  • Daly, Brendan.
  • Dardis, John.
  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Hanafin, John.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • Mansergh, Martin.
  • Minihan, John.
  • Morrissey, Tom.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Rourke, Mary.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • Walsh, Kate.
  • White, Mary M.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Browne and Cummins; Níl, Senators Minihan and Moylan.
Amendment declared lost.

I move amendment No. 5:

In page 9, subsection (2), line 19, after "enactment" to insert "or under any other scheme for the assessment".

Unlike some of the other amendments, which I suppose were a little contentious, this amendment and amendments Nos. 6 and 7 represent a simple attempt on my part to clarify something. Amendment No. 5 relates to any assessment of people's means by the State, under an enactment or otherwise. People's means are sometimes assessed when there is no legal or legislative basis for it — there might be an administrative basis for it. I want to ensure that the receipt of repayments under this legislation will not affect anything when people's means are tested, regardless of how their means are tested.

I choose to believe at this stage that the Government intends that no means-tested assistance or support of any kind will be affected by the receipt of repayments of this nature. I have often adverted in this House to the fact that if one wins the lotto, one's winnings are not subject to income tax but they do affect one's entitlement to social assistance. While that seems like a peculiar approach, I can see the logic behind it. If one sues for damages following a car accident and is awarded damages as a payment for one's loss, the moneys in question are assessed as part of one's means for the purposes of social welfare assistance. I know about this matter because an aunt of mine, who is now deceased, had her pension reduced in such circumstances. The idea is that the compensation for damage one receives is regarded as part of one's positive income. I have tabled amendment No. 5 to ensure that no form of means-tested payment will be affected by these repayments. I will speak about amendments Nos. 6 and 7 in a moment.

While I understand the intent of Senator Ryan's amendment No. 5, I am not in a position to accept it, unfortunately. It would allow for prescribed repayments to be disregarded for the purpose of the assessment of means under non-statutory schemes. If I were to accept the amendment, a number of community or non-statutory schemes could be deemed to be covered by this legislation. That could lead to legal or administrative difficulties. Only statutory schemes will be considered for the purpose of the scheme when disregarding repayments for the purpose of the assessment of means.

My concerns are legitimate. Do I understand correctly that the moneys given to people who receive State payments which are the subject of a means test which is not based on an enactment will be reduced because they receive repayments under this legislation? It seems the Minister of State is saying they want to leave a possibility in place for people who receive payments which are not covered. I refer to payments which are means tested, other than via an enactment. The Bill states that repayments "shall be disregarded in the assessment under any enactment of a person's means". It seems to me that it is extraordinarily unfair that when officials are assessing means other than under an enactment, they will be entitled to include this payment in their considerations.

What we are saying is that only statutory schemes will be considered when disregarding repayments for the purpose of the assessment of means. This provision has been included on the advice of the Attorney General.

Does the Minister of State trust him?

We could not ignore that advice.

Amendment put and declared lost.

As amendments Nos. 6 and 7 are cognate, they may be discussed together by agreement.

I move amendment No. 6:

In page 9, subsection (2), line 22, after "benefit" to insert "or assistance".

When I tabled amendment No. 5, I thought I was simply being fussy, but I now realise I was actually raising a serious issue. It seems it is intended that the repayment to certain people of the money that was stolen from them by the State will affect them. I have proposed amendments Nos. 6 and 7 for similar reasons. I would like to amend the reference to "a person's entitlement, or level of entitlement, to a health or social welfare benefit (including any subvention to be applied towards any such benefit)". I am concerned because there is a distinction between "benefit" and "assistance". I sincerely hope I am mistaken in suspecting it is intended that the receipt of a repayment will be considered when assessing people's means and, therefore, will affect the payment of moneys to such people for the purpose of any form of social assistance, such as the non-contributory old age pension, which is a form of social assistance, supplementary welfare allowance or unemployment assistance.

When I saw the word "benefit" in the Bill, I hoped it was not what I thought it was. My amendment will specifically include the words "or assistance" to clarify the matter. I am gratified by the fact that the amendment has not been ruled out of order, because that means it has been accepted that I am not providing for the possibility of imposing an extra charge on the Exchequer. Perhaps that means I have to accept that the term "benefit" must include "assistance". However, I will await the Minister of State's remarks.

The Senator's observations are correct.

Which part of them?

The last part. To put his mind at rest, I am advised that the word "benefit" will cover "assistance". Hence, I am not in a position to accept the amendment. The Attorney General's office is satisfied that the present wording is sufficient for the purpose of the scheme.

The Department of Social and Family Affairs should be informed that it is the Government's intention that all statutorily-based social assistance schemes are included within the term "benefit".

Amendment, by leave, withdrawn.
Amendment No. 7 not moved.
Section 8 agreed to.
Amendment No. 8 not moved.
Sections 9 and 10 agreed to.

I move amendment No. 9:

In page 13, between lines 32 and 33, to insert the following new subsection:

"(9) In all cases under this section, a full calculation of the amount of the repayment shall be given to an applicant under subsection (2) of this section, before he or she may give his or her written authorisation to the donation.”.

This amendment proposes that before a person gives his or her consent to a refund from nursing home charges, he or she will be given a full calculation as to how the figure was arrived at, in order that he or she will be best informed to make a decision in this regard. Hopefully, it might save time from being wasted on appeals in some cases.

I do not accept this amendment because section 15(a) already provides that the scheme administrator should give notice in writing to the applicant of its decision and the reasons for its decision. In the case of those receiving a repayment, the reasons for the decision will include a calculation of the amount of repayment. This will be especially important if any ex gratia deductions, or deductions of unpaid charges for long-stay care, are to be taken from the overall sum due. This will be an administrative process and enabling an individual to determine how a calculation was reached for a particular repayment amount will help to reduce the number of potential appeals. Deputy Twomey proposed a similar amendment, which was rejected following due consideration.

Amendment put and declared lost.
Amendment No. 10 not moved.
Section 11 agreed to.
Sections 12 and 13 agreed to.

I move amendment No. 11:

In page 16, between line 23 and 24, to insert the following new subsection:

"(5) Copies of particulars referred to in subsection (4)(f), showing how the amount falling due was calculated, shall be given to the relevant person referred to in subsection (4)(a) or his or her next of kin as appropriate.”.

This is similar to the previous amendment and while I will listen to the Minister of State's explanation, I do not expect him to accept it.

I do not accept this amendment because the provision of section 15(a) already provides that the scheme administrator will give the applicant notice in writing, as well as the reasons for the decision. In the case of a decision indicating that an award is to be made, a calculation of how the amount of the award was determined will also be provided. In turn, this will reduce the number of appeals and will help to assist the applicant as to how the determination of repayment was arrived at.

Amendment put and declared lost.
Section 14 agreed to.
Section 15 agreed to.

I move amendment No. 12:

"In page 19, subsection (16)(a), line 17, after “relates,” to insert “or if the applicant had died or become incapable of acting, means a person affected by the decision,”.

Section 16 concerns appeals against decisions and begins, "An aggrieved person may", before going through a appeals procedure. Section 16(16) then introduces a definition of the term, "aggrieved person". Logic would suggest that this definition should have been included before its first mention. However, I must live with my confusion, as the world of parliamentary draftspeople is a world into which I have no insight. Moreover, given my past experiences, the world in which the Department of Health and Children drafts legislation is a world into which I have even less insight.

Nevertheless, the definition of "an aggrieved person" in section 16(16) states "in the case of any decision referred to in that subsection, means the applicant". Hence, if the applicant is deceased or is incapable of taking responsibility for himself or herself, apparently there is no recourse to appeal. This is a good way to invite a court challenge. It will invite trouble to state that no appeal can be made because people are of unsound mind, or whatever the appropriate phrase is, and cannot therefore make appeals themselves. Similarly, the suggestion that the legal representatives of a deceased person cannot appeal will also make trouble.

I reiterate that the principle of charging people for the use of public nursing homes is perfectly reasonable, although it is a pity that the legislative basis for so doing was not sorted out. I hope that a significant and substantial part of the money which will be refunded will be used to support these services, either through the scheme provided in this Bill or some other. Like all Members I have heard a few unfortunate and regrettable anecdotes pertaining to relatives who had not been seen for years but who came out of the woodwork with the appearance of a sniff of money.

Nevertheless, given my understanding of the law's operation, I propose, in respect of the definition of "an aggrieved person", to add to the phrase, "means the applicant", and the phrase, "or if the applicant had died or had become incapable of acting, means a person affected by the decision".

Can the Minister of State explain how he can be certain this will not be open to significant legal challenge? The applicants will be elderly people and will get to the stage where they are not capable of making the decision. If I wanted to be nasty, I could suggest that it is hoped that frail people will not go through the entire complicated process of appeal and that only a few will so do, or, in other words, the Department is trying to deter people from appealing. I hope this is not the case. Undoubtedly, however, neither someone who is incapable of making an appeal himself or herself nor the estate of a deceased person can appeal. While I cannot guarantee its outcome, I can guarantee that a forceful legal challenge will follow this provision as sure as night follows day. This may give rise to a major delay and perhaps to further costs.

I do not accept this amendment because the legal advice received from the Attorney General's office indicates that no person not party to a decision can appeal a decision without permission of the courts. The rules of the superior courts make it clear that no person has a right to be joined to an appeal without special permission of the court hearing the appeal.

To minimise confusion that may arise in respect of this matter, the term "aggrieved person" is being used to indicate that only an affected party can appeal against a decision. If an applicant dies or becomes incapable, then a valid receipt cannot be obtained for any repayment under that application and no payment can be made under that application and a renewed application will be required. In that instance, as no valid receipt could be obtained and no repayment made, an appeal would not be considered. If a repayment was made, the State may be exposed to valid claims in the future as no valid receipt could be obtained. In the case where the applicant dies and is also the relevant person, a connected person can make an application on behalf of the relevant person. In the case where the applicant dies and is not the relevant person, the relevant person, or another connected person, can make an application. Alternatively, the HSE could make the application on behalf of the relevant person.

Is the amendment being pressed?

That remains to be seen. Did the Minister of State say a connected person can make the application but cannot appeal? That confuses me. It may be that in my advancing years I am more easily confused than before but in this case I do not think so. I do not have great faith in the constitutional judgment of the Parliamentary Counsel. It has been found wrong as often as it has been found right. Although most Members of the Oireachtas warned it that the previous legislation to this was probably unconstitutional, the Attorney General advised the Government otherwise, and it was subsequently found to be unconstitutional. While I appreciate that the permission of the courts is needed, the fact that we leave it out does not mean people will not seek the permission of the courts and the courts will, as they have done in less obvious cases of injustice, give permission for the cases to be heard. We should legislate to deal with this issue instead of it having to go to the courts. We could have thought of a way to do so.

No matter what legislation we pass in this House there is no guarantee that it will not be challenged.

We know that.

A connected person can make an appeal because he or she is joined.

Is the amendment being pressed?

No. On the heads of the Government be it.

Amendment, by leave, withdrawn.
Section 16 agreed to.

I move amendment No. 13:

In page 19, before section 17, to insert the following new section:

"17.—Before any appeal under section 16 shall be allowed, the appellant shall have the right to employ such local appeals process as are open to him or her.".

That section is ambiguous on what a person is entitled to avail of in terms of appealing a decision which he or she believes was unfair. There is no ambiguity on the right of the Minister, barristers and solicitors to apply. What rights has a person to appeal and what can he or she use to enhance his or her case?

I do not accept this amendment because an independent, transparent appeals process is to be established for this scheme. The appeals officer or officers will be provided with guidelines on the procedures for dealing with appeals. Having one appeals process for the scheme will ensure a consistent approach to dealing with appeals. All applicants will be advised on their right to an appeal and how to make it.

A person who receives an award may make an oral or written submission seeking a review of the amount awarded under the scheme and the appeals process will be independent of the scheme administrator and the HSE and will notify the appellant in writing as soon as possible of the outcome of the appeal and the reasons for the decision. When an award is accepted under the appeals process the appellant must agree in writing to give up any rights he or she has to bring a claim for damages in the courts in respect of that repayment. When an appellant decides not to accept the decision of the appeals process, any right to bring a claim for damages to the courts is not affected.

The person appointed to determine appeals will be independent in the performance of his or her functions and will comply with guidelines prepared by the Minister. Oral and written submissions may be considered and the applicant will be informed of the outcome as soon as possible. It will also be open to appellants to bring a complaint to the Office of the Ombudsman.

Amendment, by leave, withdrawn.

I move amendment No. 14:

In page 19, subsection (2), line 37, after "then" to insert:

"the Executive shall make a decision to that effect, and shall notify the person to whom the payment was made (or his or her estate) of that decision, and the person or his or her estate may appeal to a person appointed under section 16(3) in respect of such decision within 14 days, (on grounds to be specified in a notice of appeal, which may include the ground that a genuine mistake occurred) and in default of appeal, or on the dismissal of such appeal, thereupon".

I should not bother because only the Government will end up in a mess over this. A private body — this secret agency with its undefined budget about which we will know in two days time — can discover, after the process has been completed, that it overpaid a person. It can contact the HSE, which can write to an elderly person in a hospital bed and say it overpaid that person and that he or she must pay the money back immediately. There is no appeal and no need for the HSE to explain the reason.

Cases such as this will go to court. An elderly person would need to go to court to challenge an administrative decision. If one wanted to invite serious constitutional questions about fairness and natural justice, one could not do so better than through section 17. I do not care what advice the Attorney General gave. I have found over the years here that what one regards as reasonable is a good way to judge the way the courts operate. If a private agency of the HSE decides a person is guilty of fraud, notifies the HSE, and the HSE contacts the person and requests the defrauded money be repaid, the scale of the money being repaid to people will be minuscule compared with the scale of what the Government will have to pay in defamation damages.

Our amendment suggests that where the private operator concludes that there has been fraud, misrepresentation or an overpayment, a simple appeals process using the appeals mechanism already present under section 16(3), would deal with many legitimate questions of natural justice. It is incomprehensible that the Parliamentary Counsel would suggest that a private organisation can decide it made a mistake and can, without apology, delay or explanation, demand it back on the spot. There is no delay, appeal or requirement to explain.

The Department of Social and Family Affairs would no longer try that, but would implement a process of appeals. However, in this case there is no appeal. It is distasteful that section 17 refers to fraud and misrepresentation, which are legitimate concerns, and overpayment, which is a mistake on the part of the paying agents. To put them in the same clause is nasty because it ties up fraud and misrepresentation by individuals with errors on the part of an agency and handles the three using the same process. That is not nice in a Bill that is meant to repair damage done by the State over 25 or 30 years.

I move the amendment that there will be an administrative appeals system where there is a suggestion of fraud or misrepresentation or where there is an error.

Unfortunately I cannot accept this amendment as an appeals officer cannot determine a matter of fraud, under the Constitution only a court can determine if fraud has occurred. The procedure is, if the scheme administrator has a concern regarding a repayment made, he or she should inform the HSE. The HSE would then investigate the matter further and, if it is evident that it may be a case of fraud, bring it to the attention of the person who received the repayment. The HSE would make known its concerns regarding the circumstances in which the money was received and the repayment in question could then be returned to the HSE. If this money were not forthcoming the HSE could seek to recover the money through the courts and the court would ultimately decide if a case of fraud had occurred.

This is an issue that was discussed at length in the other House. Fraudulent claims are at issue here, where people provide false information when making an application. We have a duty to the taxpayer to recoup payments made that should not have been made. I am not sure there is an easy way to tell somebody, whatever his or her age, that he or she has been overpaid and must pay the money back. It should be dealt with sensitively.

The Minister of State should put that in the legislation.

It is not easy to give bad news and if people have money in their bank accounts there will always be a certain reluctance to repay it. If money has been received through a fraudulent claim we have the duty to recoup it but the applicant will be notified about the mistake that has taken place.

Where does it say that?

How does it work under social welfare? That is how it will operate.

Social welfare has a system of appeals.

In these instances contact will be made with the person who received the money notifying him or her.

It does not say that anywhere.

That is my understanding of the scheme and the manner in which it will operate. People will be notified of the mistake.

It does not say that.

We will then enter into negotiations. This is normal procedure in order to give a person the opportunity to repay the money.

It does not say any of this.

Taking a case to court will be a last resort. If moneys have been received through false claims we have a duty to ensure they are repaid as quickly as possible.

Now I know what they are doing. The reason for conflating overpayment and payment procured through fraud or misrepresentation is to use the latter to justify a brutally insensitive method of recovering money. The Minister for State says such people will receive written notification but there is nothing here to indicate that. The HSE and its various agencies have much to learn and are often not models of sensitivity, one need only consider the cases of people refused medical cards. How can we presume that the HSE will deal with these cases sensitively? Why could it not have been explicitly added to the Bill that the HSE "shall write to the individual and ask for his or her comments"? I do not know, but it was not included in the Bill. Instead section 17(2) states:

Where it comes to the knowledge of the Executive that—

(a) all or part of the payment of a prescribed repayment to a person has been procured through fraud or misrepresentation [there is no burden of proof there], or

(b) there has been an overpayment of a prescribed repayment to, or in respect of, a person,

then the amount of that prescribed repayment so procured, or of that overpayment, as the case may be, shall be repayable to the Executive on demand.

We are in very delicate legal territory here. In my view the HSE will receive legal advice to say as little as possible because the more one says the more one is in danger of offering people reasons to go to court. Instead, people will get a brutal one-liner saying they were accidentally overpaid, that they now owe so many thousands of euro and must pay it back immediately. That is what "on demand" means and these words were not chosen accidentally. It is an extraordinarily brutal piece of language.

Fraud and misrepresentation are deliberate deceptions practised by some people which we all condemn. The Bill conflates these issues with overpayment. Overpayment is an error on the part of the super-efficient new private body we are to hear about later in the week which need only tell the HSE if a mistake is made for the HSE to write to the individual demanding repayment.

In my Second Stage speech I said the Tánaiste deserved credit for facing up to this problem when other people had ducked it. As a tail-end to a sorry mess perpetrated by this State against its citizens, section 17 reflects poorly on public administration and governance and I could not withdraw this amendment.

We indicated in drawing up the scheme that we were trying to introduce a simple system that would clarify for applicants how to apply and receive moneys in the most straightforward way possible and without necessitating recourse to legal professionals.

The manner in which people are written to is an administrative matter. Not everything can be put in legislation like the day on which letters should be written or the type of pen to be used.

Come on.

Senator Ryan is convinced they will receive blunt, one-line letters and that is the worst case scenario. In general, Departments dealing with repayments, such as the Department of Social Welfare, do so in a sympathetic and sensitive way. The sheriff will not be called on the first day, though if moneys were paid in error we have a duty to try to recoup them.

The oversight committee has been involved throughout the passage of this legislation and it aims to ensure that the processes put in place are appropriate.

Is the amendment being pressed?

Amendment, by leave, withdrawn.
Question proposed: "That section 17 stand part of the Bill."

Where did the Government get the advice that a bureaucrat can decide that something has been done through fraud? There is no adjudication by any court on this issue, it is not being suggested that an individual will be brought to court in order retrieve the money. What is being said is that some bureaucrat or whiz kid executive of a new agency will decide that the agency has been defrauded. He or she can write to the HSE, which will in turn look at the case and write to another bureaucrat.

It should be remembered that we are talking about the most obscure agency the State has ever seen. The incapacity of the HSE to provide information should be mentioned if one wants to reduce six Members to foaming incoherence. It does not matter if the Members are from the Government or Opposition side. No agency I am aware of reduces Members to such foaming incoherence as when they are brought together to list the inabilities of the HSE in dealing with people on the most routine matters. We are now supposed to believe that the agency will develop a significant level of sensitivity. This agency has stated it is not competent enough to hand out money, yet it believes itself to be competent enough to make judgments on whether people committed fraud.

Where is the legal expertise available to the HSE, which has stated it cannot hand back the money which it took off people? It can apparently only deal with money in one direction. It could take money very efficiently and, as it turned out, illegally. Various agencies could do likewise. Although the executive could take money from one channel, it has found itself incapable of sending money down another channel. Nevertheless, it still feels capable of labelling an action fraudulent.

There is not even a definition of fraud in the Bill. The executive will apparently recognise fraud and ask for the money back when appropriate. It will be up to the individuals concerned to go to court. The people concerned should be noted, who will be older people, their children, or those in charge of older persons' estates. They will start with the old people. The executive will tell these people that they defrauded the executive. That is wonderful.

One would think that in order to avoid the risk of further hurt to older people, we would have put in place some way of ensuring that such action was not taken unless there is proof. There is no proof. The section states:

Where it comes to the knowledge of the scheme administrator that—

(a) all or part of the payment of a prescribed repayment to a person has been procured through fraud or misrepresentation,

This does not force the scheme administrator — a private agency — to prove anything. The term "comes to the knowledge" is a wonderful phrase which does not often come up. It is a bit better than an opinion.

The issue will be handled badly by an agency which will not perform nearly as well the Government would have us believe. The matter of the working families tax allowance in Britain is relevant. It is a wonderful idea which has been handled so badly in Britain that it could well cost the British Labour Party the next general election. A number of mistakes were made in the assessment, and six months later people received a brutal letter looking for money to be returned.

I do not understand why a simple process was not outlined, particularly for cases where mistakes are made by the paying body. A simple stipulation could have been inserted to reassure people that a process exists to get the mistake adjudicated on by somebody independent, and a way of repaying money could be outlined. This does not relate to staged payments of €20 per month. This outlines payment on demand, or else court proceedings will take place.

I am surprised. I did not follow the legislation through the Dáil, but once I read the section I wondered where our heart had gone.

I am a little bit confused about Senator Ryan. An hour ago he told us he was very critical of the appointment of an outside company and he indicated that the HSE was the body to deal with this issue as it had the resources. The Senator is now talking of the poor performance it expects from the executive and its inability to carry out certain functions.

I am taking the executive at its word.

We set up a system, and it is important that within the system there is some mechanism for recouping moneys wrongly paid out. A fraudulent claim could be from a person or son or daughter of such person. If moneys have been paid out which should not have been, every effort should be made to recoup them. This is the system we have put in place to do so. I do not imagine too many older people will make false claims.

I can imagine State agencies making mistakes.

If such agencies did, they would put their hands up. It would not be the first time.

They would put their hands out looking for money to be returned.

Where humans are working, there will always be errors. Neither the HSE, any company nor any individual would claim otherwise. This is the system we have put in place. The oversight committee has been involved in all the drafting of this legislation and it is quite happy with the process we have put in place today. The heavy-handedness predicted by the Senator will not happen. The oversight committee, along with Members in this House, will cast an eye on it.

The HSE is the most impenetrable body ever created in this State.

Many of our constituents will deal with the HSE over the next 12 to 24 months. I am sure we will be kept fully appraised of how the system is operating. I am confident the system we have put in place is a good one which will work well.

Question put and agreed to.
Question proposed: "That section 18 stand part of the Bill."

This section deals with the Comptroller and Auditor General scrutinising accounts, but there is no mention of sanctions. The committee structure within the Houses is quite new by comparison with what is established in other Parliaments, but we have all marvelled at the American committee system in the US Houses of Congress, which have real power.

I watch "Oireachtas Report" on a Thursday evening, and every week we see scandalous overruns of taxpayers' money by different agencies, with the Comptroller and Auditor General bringing forward reports and them to the cross-party Committee of Public Accounts, whose members then express surprise and shock. Everyone then goes home and no sanctions seem to come about. Nobody is held accountable and nobody appears responsible.

I fear the same will happen here. It is a pity there is no section detailing who would be held responsible. There is a complete lack of democracy in the health service area. If one asks the Minister for Health and Children a simple question it is bounced back to the HSE and it will take months to get back to the person who raised the question, if it happens at all. If the HSE does reply, God knows what type of an answer it will be. It will certainly not be the answer sought, or it will not be complete. This will be another agency outside the remit of the HSE, the Department of Health and Children and the Minister.

I am concerned about this although I know nothing can be done at this stage. I hope we do not have a Bill like this again, but in future similar legislation there should be sanctions if people fail to meet targets. In the private sector that would not be tolerated, and it should be no different for the public sector. The public sector is very good in Ireland and has been capable of brilliance and great achievements. Unfortunately, at times, it has gone wrong.

People should be held accountable and made responsible. At this stage, the taxpayer is blue in the face because of this issue. Recently, in Carlow, sports grants were given out for hundreds of thousands of euro. This was fair enough, although some groups did not get any money. These groups do not mind this so much until they see much squandering of public money in other areas. The issue then sticks in the throat.

We must introduce sanctions and beef up the Committee of Public Accounts and the Office of the Comptroller and Auditor General. We should hold people to account, which is not happening at the moment.

I am surprised the Senator is so keen today on putting sanctions in place. When he had an opportunity to table amendments he did not propose any.

It is a general point.

This section is a safeguard we have put in place where the Comptroller and Auditor General shall be entitled to audit for the purpose of the Act. It is necessary as a large sum of money is involved. It is important we have the Comptroller and Auditor General involved in that way.

He has no teeth.

Question put and agreed to.
Sections 19 to 23, inclusive, agreed to.
Title agreed to.
Bill reported without amendment.
Report Stage ordered for Wednesday, 14 June 2006.