Seanad Éireann debate -
Wednesday, 27 Jan 2016

Vol. 245 No. 7

Commencement Matters

Wastewater Treatment

Senator Thomas Byrne

I thank the Cathaoirleach for giving me the opportunity to raise this and many other important matters in the Seanad in the past few years. This issue relates to sewer pipes in very old estates. Some estates were constructed as recently as 40 years ago, but others are much older. I have come across examples in Ashbourne, Duleek and Drogheda. The issue concerns sewer pipes that become blocked from time to time due to inadequate infrastructure put in place at the time in the 1970s, 1960s or even the 1930s. If the pipes in one house are blocked, the pipes in the whole street can also become blocked. Until Irish Water was formed, the local authorities used to regularly clear sewer pipes on behalf of residents. Since responsibility for water and sewage services was removed from local authorities, in general, Irish Water refuses to clear sewer pipes.

There are cases in which people have to clear a blockage in their systems. However, the blockage is not on theirs but on someone else's property and nothing can be done about it. This is a very serious issue which tends to affect older residents who have been in their houses for a long time. It is not a problem that affects newer estates as much. This is a responsibility local authorities had taken on for many years, but it did follow through to Irish Water. It is essential that some direction be given to it, specifically in estates where this work was always done by the local authority. It is not possible for someone to deal with a problem caused down the street; it has to be dealt with centrally by the public authorities.

Minister of State at the Department of the Environment, Community and Local Government (Deputy Ann Phelan)

I thank the Senator for raising this issue and note how it affects many householders. As the House will be aware, the Government, local authorities and Irish Water are continuing to deliver on an ambitious transformation programme in the water services sector. Since 1 January 2014, Irish Water has statutory responsibility for all aspects of water services planning, delivery and operation at national, regional and local level. The Water Services (No. 2) Act 2013 provided for local authorities to act as agents of Irish Water, with this relationship being expressed through service level agreements. Through these 12-year agreements, local authorities are utilising their experience and expertise in asset management and operations to provide services on behalf of Irish Water.

This expertise is being combined with the considerable network and utility management experience available to Irish Water. The agreements are based on partnership, continuous improvement and the delivery of efficiencies.

Each service level agreement, SLA, in place with a local authority is supported by an annual service plan which reflects the required programme of transformation for that authority. It also outlines agreed objectives and standards of performance, set against a budget covering headcount, goods and services and investment in the forthcoming year. Annual service plans encompass a set of operational objectives, key performance indicators and a related budget, including payroll. These plans set out the context for the delivery of water services for each local authority for a given year.

The Water Services Act 2007 sets down the obligations and responsibilities of water services authorities and property owners in respect of water infrastructure. Sections 43 and 54 provide that a property owner is responsible for the maintenance and replacement of any water or wastewater pipes, connections or distribution systems connected within the boundary of his or her property. This was the case also prior to the transfer of responsibility for public water services from the local authorities to Irish Water. However, local authorities, at their own discretion, may have undertaken clearance works in respect of common wastewater infrastructure on private property in the past. These works were not a requirement of the law pertaining at the time and not every local authority would have provided such services.

The Water Services (No. 2) Act 2013 transferred responsibility for the maintenance and repair of pipes and combined drains under publicly owned roadways and pathways to Irish Water while responsibility for storm water sewers remained with local authorities. The position, as set out in legislation, provides clarity on the responsibility for the maintenance of common sewer pipes.

Notwithstanding the legal position, I recognise the importance of the local authorities and Irish Water working together to agree operational guidelines on this and other boundary type matters so as to provide clarity for householders as to the services which they can expect to receive from Irish Water, working in partnership with the local authorities under the SLA arrangements. Against this background, further legislation in this area is not envisaged.

Senator Thomas Byrne

Obviously, Fianna Fáil’s manifesto states it wants to abolish Irish Water, a position common to many parties. I hope the matter will resolve itself after the general election. The Minister of State has come a bit of the way from what Ministers have said before. It seems the Minister of State is not saying “No” to this but is not saying “Yes” either. She is merely saying that local authorities and Irish Water should work together. Is this not what the Minister of State and her boss, the Minister, Deputy Alan Kelly, should say to Irish Water, namely, sort this out with the local authorities where it was done before? Clearly, there are problematic estates dotted around the country, usually at least 40 years old and some are ex-local authority and not all privately built. They need this occasional service which was always provided to continue. These people simply cannot understand, now that they are paying for water and sewage charges, why this is not provided.

Will the Minister of State get the local authorities and Irish Water, the staff of which will be transferred back to local authorities after the election, to knock heads together to get this done? It is mainly elderly people in general who are affected by this.

Deputy Ann Phelan

I have sympathy for the issue the Senator has raised. The recent floods have thrown up anomalies in these areas and about who has responsibility for this and that. When I was on Kilkenny County Council - it is the same in Carlow - the local authority did not have responsibility for water pipes on private property. It was the owners who had responsibility in that respect.

The Senator might speak to the director of services at his local authority to examine how this could work in the future. If the Senator’s party gets into government after the next general election and abolishes Irish Water, he could do all of these things in the future.

Defence Forces Ombudsman Complaints

Senator Gerard P. Craughwell

I welcome the Minister of State, Deputy Paul Kehoe. While not wishing in any way to undermine the Minister of State's position, it is regrettable that the senior Minister is not present to take this matter.

This matter is to discuss the outcome of a report from the Ombudsman for the Defence Forces appeal of redress of wrongs, June 2015. I acknowledge the work done by the senior Minister for the Defence Forces. As was remarked in the Representative Association of Commissioned Officers, RACO, SIGNAL magazine in December, the senior Minister has been recognised as an advocate, not just for members of the Defence Forces but for those who served in uniform in this country. The Minister of State has been to many an event involving the Defence Forces and I know both Ministers hold the Defence Forces in high esteem. Having said that, however, I find it regrettable that the same cannot be said of some of the Department’s officials who seem unaware, even indifferent, to the needs of those who serve. We are joined in the Visitors Gallery by the complainant in the case I have raised. I am honoured and proud to represent him, given that he has given more than 40 years of distinguished service as a commissioned officer. The case I am referring to is not of the Minister of State’s making but arises from a simple but devastating administrative error. It was a simple mathematical error, an error which forced a man who served this country with distinction to retire two years early from his post as a lieutenant colonel in the Permanent Defence Force, when, in fact, he should have gone on to serve two more years at the rank of colonel.

The commissioned officer's service commenced in 1972 and he continued to serve until he was retired forcibly in 2013. The case concerns a competition for promotion which was held in the spring of 2012. At that time, the officer in question was serving in Kosovo as an acting colonel. Following the interview process, the officer in question was placed 11th in the order of merit. The top nine applicants were promoted. As part of the interview process, candidates were awarded marks under several headings, one of which was length of service. As was his right, the officer in question sought an analysis of the marks to be satisfied that all marks were awarded correctly. On examination, he found that two of candidates were erroneously awarded marks to which they were not entitled. The officer in question complained to his superiors that an error had been made with respect to the awarding of marks in respect of length of service. Had length of service marks been awarded correctly to all applicants, two of the applicants originally placed ahead of the complainant would have been ranked below this officer and he would have been placed ninth. As such, he would have been promoted to the rank of colonel.

The military authorities rejected the officer's complaint, stating it was without foundation and that all marks were correctly awarded. Dissatisfied with this response and having completed the internal redress process, the officer in question referred the matter to the Ombudsman for the Defence Forces, as was his right. Before his retirement, the ombudsman was a military judge, equalled only by a judge of the High Court. Furthermore, the ombudsman had, prior to his appointment as a military judge, been Deputy Judge Advocate General, making him the most senior military legal authority at the time. We can all agree the ombudsman was not only charged with adjudicating on the matter but was well qualified to do so.

The first report of the ombudsman issued in March 2014. However, from evidence I have before me, it seems that the work of the ombudsman in this case was not made easy. It seems that he was frustrated at every turn by the military. Following his initial report in 2014, he was forced to wait almost six months for the military authorities to provide-----

Acting Chairman (Senator Terry Brennan)

Ceithre nóiméad.

Senator Gerard P. Craughwell

Perhaps the Acting Chairman might bear with me; this is really important. The complainant in the case is in the House and we must show deference to him. A man who has served the country with distinction is entitled to it.

Acting Chairman (Senator Terry Brennan)

I have no doubt about that.

Senator Gerard P. Craughwell

The length of service marks were incorrectly awarded. Two applicants were placed above this man and as a result, he was not promoted. The ombudsman's recommendation was that the administrative error should be acknowledged with a suitable expression of regret, that appropriate acknowledgement and appreciation of the complainant's long distinguished service in the Defence Forces be offered to him and that a gesture in respect of the wrong suffered by the complainant would be appropriate, having regard to the consequences of the administrative error for the complainant and the range of discretions available to the Minister. The consequences of the administrative error are massive for this officer. He has lost two years service as a colonel with all the salary conditions appropriate to the post. He has lost out on a considerable amount with respect to the gratuity difference between the lump sum for a lieutenant colonel and a colonel. He has suffered an enduring loss of pension with respect to the difference between the pension of a colonel and a lieutenant colonel. In addition, the officer would have been entitled to apply for and possibly would have served overseas at a rank senior to that of colonel, an acting rank, which would have had a considerable impact on his pension entitlements.

There is more that I need to say. As I am under pressure from the Acting Chairman, I am not going to push my luck. This is a very serious case. I hope, once we have concluded our debate, that he will agree to meet the officer in question who is here and have a brief word with him.

I thank the Acting Chairman to whom I apologise for pushing my luck.

Minister of State at the Department of Defence (Deputy Paul Kehoe)

I acknowledge the commitment of all members of the Defence Forces and the commitment of Óglaigh na hÉireann.

As the Senator will be aware, this case involves the submission by a former officer of the Permanent Defence Force to the Ombudsman for the Defence Forces. The submission was in the form of an appeal for redress of wrongs made under section 114 of the Defence Act 1954, on foot of the considered findings of the Chief of Staff that the complainant had not been wronged in the view of the Defence Forces.

The complaint was made to the ombudsman's office on the 18 February 2013. The complainant alleges that he was wronged by an administrative error in a promotion competition held in 2012 and as a consequence, he was not promoted to the next higher rank with consequential implications relating to retirement on age grounds, gratuity and pension entitlement. By way of background, it should be noted that changes were introduced to the 2011 promotion scheme for officers which was held in March 2012. These changes were introduced following detailed negotiation and agreement with the Representative Association for Commissioned Officers under Conciliation and Council Report No. 447, CCR 447. This agreement, signed by both management and staff representatives, set out revised arrangements to be applied in respect of the application of length of service marks. A key objective in concluding this agreement was the introduction of objective assessment for promotion on merit and the elimination of seniority as a primary basis for officer promotions.

Changes in terms and conditions and procedural arrangements, having been agreed at conciliation council, are then transposed into the standing administrative instructions issued by the Chief of Staff. As will be appreciated by Senators, the transposition of such agreed arrangements through the industrial relations process into administrative arrangements can take time. Nevertheless, it is the agreement reached through the conciliation and arbitration process which must take precedence.

In this case, the relevant accompanying Defence Forces administrative instructions had not been updated at the time of the competition. While this may be a cause of concern, it is not without precedence. However, I can reasonably say the revised arrangements under CCR 447 were well signalled to all members of the Defence Forces and well in advance of the promotion competition.

In his final report the ombudsman concluded that the promotion competition process was administered in a procedurally unfair manner as, in his view, there was ambiguity in relation to the provisions regarding length of service marks. In addition to his findings, the ombudsman made a range of recommendations arising from this case.

The recommendations of the Ombudsman for the Defence Forces are under active consideration. I am advised that the matter may require obtaining advices from the Office of the Attorney General before any decision on the matter can be made and the issue of such advice is also under active consideration. In the light of the above, the House will appreciate, it would not be appropriate for me to comment further on this case at this time.

Acting Chairman (Senator Terry Brennan)

Ceist ghearr le do thoil.

Senator Gerard P. Craughwell

I thank the Minister of State for his reply. His colleague in the other House, the Minister for Health, Deputy Leo Varadkar, has made the point in the medical world that we should fess up and be honest if we have made a mistake and put it right. It is grossly unfair that this man has had his life put on hold while he waits for an apology to redress the wrong that has been done to him. He had 40 years service not only in this country but abroad where he served with distinction and bravery. He came under fire in the Lebanon and in other parts of the world. This man is entitled to full and prompt action. This issue is going on since March 2014 and the final report is more than seven months old. Before he leaves office, will the Minister of State execute the findings of the ombudsman and put this matter to rest? As I know he cares, I ask him to do that.

Deputy Paul Kehoe

I do not dispute the commitment of the gentleman in question to the Defence Forces. As with all members of the Defence Forces, they make a huge commitment and I do not question this gentleman's commitment. I hope the Senator will appreciate that it would not be appropriate for me to comment any further on this case as it is going through due diligence.

Senator Gerard P. Craughwell

I will give the Minister of State a copy of the ombudsman's report.

Family Support Services

Acting Chairman (Senator Terry Brennan)

Cuirim fáilte roimh an Aire.

Senator Jim Walsh

The purpose of this Commencement matter is to ask the Minister to outline the specific initiatives the Government plans to implement to promote and support married families and the objective of addressing child poverty. I was prompted by comments made by the Minister for Children and Youth Affairs at the UN Committee on the Rights of the Child where he said that children who grow up in households where parents are effectively precluded from paid work will struggle to be included in mainstream society in any meaningful way. We know that household joblessness can lead to the transmission of poverty from one generation to the next. Good social policy and a strong expression of children's rights give every child the opportunity to realise their full potential. Obviously, we know from our own experience, as politicians, and from all the studies carried out that lone parents - often the mother who struggles and makes a lifetime of sacrifices to rear the child, often without any support from the father - have more challenging, economic and social issues during their life because of that experience.

I am also prompted by the Minister's comments on reducing the waiting time for a couple seeking divorce to be reduced. This does not fit well with other comments the Minister has made on the importance placed on marriage. I think the position is that a couple must be living apart for four out of the last five years. In this regard, there is a necessity to underpin marriage.

To some extent it is surprising that two people, a man and a woman, might come together when young, fall in love, get married and spend their lives together. It is a bit of a phenomenon in its own way. It is a bedrock to society when this happens. In the western world there has been an increasing propensity for separation and divorce but in this country only approximately 250,000 people are separated or divorced. The Minister might correct me if I am wrong. We have not had the level of divorce and separation that we have seen in other countries and we should try to preserve that level.

The studies I mentioned are very interesting and I presume the Minister or her officials will examine them. I just picked the one from Pennsylvania State University, whose scholars began the inquiry conscious of decades of research, producing evidence that parental divorce is negatively associated with offspring outcomes from early childhood through adolescence and into adult years. It indicates that children who experience parental divorce before age seven years, for example, manifest significantly more behavioural problems at age 11 years. It is a good and balanced report. The report of the Swedish university is quite interesting as it is research from a number of years back. It indicates that during the 20th century, divorce rates have increased substantially in most cities in the Western world and it has been demonstrated that parental divorce is associated with several negative outcomes in children. The research has demonstrated that children who experienced parental divorce generally reported lower psychological well-being than children from intact families. The report also demonstrates that a cohort of women in their mid-50s coming from families of divorced or separated parents experienced greater challenges in that area when compared with those who came from intact families. One finding illustrates that contrary to expectation, data do not show that the association between parental divorce in childhood and psychological problems in adulthood diminish significantly over time. Particularly in the challenging times in which we live, society as a whole needs to try to underpin the importance of initiatives to preserve, support and incentivise this bedrock of society.

Minister for Justice and Equality (Deputy Frances Fitzgerald)

I am pleased to have the opportunity today to outline the Government's policy on support for the marital family and on provision for divorce and separation in the context of family breakdown. The Senator is aware that there are very substantial legal protections and recognition for the family based on marriage at both constitutional and statutory level. These are recognised not only in our family law code itself but also in the tax codes and in a variety of State benefits provided to spouses. The State recognises the value of a stable and loving marital family and the immense benefits that it brings to society as a whole, particularly to the children of the family. However, it is a sad fact that serious marital differences may arise and cannot always be addressed other than by separation or, ultimately, divorce. The people decided in 1996 that there should be constitutional provision for divorce in cases of irretrievable marital breakdown. However, as the Senator noted, it is interesting that 20 years later, Irish divorce and judicial separation rates remain low by international standards. Annual rates of divorce and separation also appear to be relatively stable, which I welcome. The data would not suggest a significant upsurge in demand for divorce in this country, and as the Senator indicated, that runs contrary to what is happening in many other places.

The State undertakes a series of initiatives to support couples experiencing marital difficulties. It continues to fund both marriage counselling services to assist couples in rebuilding their relationships, which are very important, along with mediation services. There is much potential for mediation and I would like to see that service developed. The mediation Bill is very close to completion and will be very important. Many people are interested in seeing the development of that mediation service around the country.

Where the relationship has broken down and the parties seek separation or divorce as the only viable option, mediation can also assist in reaching agreements on the terms of the separation or divorce, helping to reduce parental conflict. I am familiar with many studies in the area and if we can reduce that level of conflict, no matter what the couple decide to do with respect to the conflict, there will be beneficial effects for children. As the Senator rightly highlighted in the studies, we know that conflict in the home - marital or otherwise - has detrimental effects on children. We need to do everything we can to help with difficulties if parents are staying together and if they are separating, we must help them to do so in a way that would have least impact on the children. It is vital to maintain the best interests of the child. The Children and Family Relationships Act 2015, key elements of which I commenced on 18 January 2016, provides a new statutory framework to consider the best interests of the child and allow the views of the child to be taken into account, whether directly or through a report by a child's views expert.

The question of income was raised by the Senator. It is clear that post-divorce, many families will suffer some reduction in income. There are many supports available, as we know, including the one-parent family payment, family income supplement or the back-to-work family dividend. With regard to the reports mentioned by the Senator, it is difficult to transpose their findings directly to the Irish context and we have limited research in this country at this point. I have no doubt that there will be more in the years to come on the impact of divorce on children. We have the first wave of data from the Growing up in Ireland study and information on separated families became available in 2014. There was a discussion in the document about the impact of the parental marital status. The authors of the report indicated there are "important implications for policies which promote marriage as the key to child development as it appears that much of the benefits of marriage are not related to marriage ... but to the socioeconomic background of mothers". That is an interesting point in the Irish context.

The Government has undertaken a series of reforms of family law to respond to the positions of families across a range of situations, reflecting a very broad commitment to supporting families, which is very important. Marital breakdown and divorce are realities of modern Irish life and there is a right to divorce enshrined in the Constitution. We need to ensure negative impacts on the children are mitigated as much as possible.

The Senator mentioned child poverty and the best way out of poverty is to have a job. The Government's focus on the creation of jobs and supporting families is clearly one of the best ways of challenging poverty. We have had success in the creation of more jobs and there has been a very high number of jobless families in this country, both marital and non-marital. That puts enormous stress on people. The focus on economic recovery and jobs is very significant, not just with respect to a family's material position but also in a psychological aspect.

Senator Jim Walsh

I thank the Minister for her response. Joblessness is certainly an issue and, unfortunately, it is often a consequence of divorce and separation. One of the partners - it is usually the woman with children, especially if she has worked in the home - may find it difficult to cope financially. The problem is that the cycle must be broken. As the Minister correctly stated, children of jobless people or those in poverty are more likely to end up in poverty and jobless. The issue must be tackled.

The reports indicate that even where there are no financial issues for children and they are not affected by poverty, there is a mental scar nonetheless. I know about the constitutional right to divorce and the Minister correctly indicated that if there is a large conflict between the married parties, keeping them together would not be a panacea for themselves or the children. That is a reality. Where young children are involved, it particularly behoves us to try to encourage couples to go for counselling and repair the relationship that may have broken down. We should assist them as long-term consequences for children come into play if they break up.

I have always held the view that once a person marries, he or she has a responsibility, in particular, to his or her children and partner. People should strive to fulfil that particular obligation for as long as possible.

On counselling, it is important that services are improved and increased. We should try to maintain Ireland's position in being well below international levels of marriage breakdown and seek to be a leader in this regard. From a purely fiscal point of view, the cost to the State and the taxpayer of marriage breakdown is astronomical, be it in social housing provision, providing social welfare benefits or dealing with consequent behavioural problems that may arise as a result of marriage breakdown or divorce and children not having a father or a mother involved in their upbringing. I encourage the Minister and her successor to do everything they can to ensure best practice in this regard is followed in this country.

Deputy Frances Fitzgerald

We need to continue to increase the supports available to families and counselling services. The development of high quality universal services in child care can and will be extremely supportive of families. Anything that reduces the pressures on individuals and families will be of benefit to the lives of children. We must do all we can to improve people's economic circumstances, but that is not to suggest this is a panacea to the problem because people can still have difficulties, even if there are no economic issues involved. However, economic circumstances have been an extra pressure on families in recent years. Continuing to focus on economic recovery and job creation will be of great support to families because the stresses associated with unemployment are a huge factor in accelerating the pressures that can lead to marriage breakdown.

Sitting suspended at 11.15 a.m. and resumed at 11.30 a.m.