Health (Repayment Scheme) Bill 2006: Committee Stage.
Apologies have been received from the Chairman, Deputy Moloney, who is unavoidably absent. This meeting of the select committee has been convened to consider Committee Stage of the Health (Repayment Scheme) Bill 2006. I welcome the Minister of State at the Department of Health and Children, Deputy Seán Power, and his officials. With the agreement of members, I propose that we review progress at 1 p.m. and decide at that stage whether we should continue or suspend for lunch. Is that agreed? Agreed.
I have a note to the effect that amendments Nos. 4 and 20 in the name of Deputy McManus have been disallowed as they could have the effect of imposing or increasing a charge on Revenue. Amendment No. 4 seeks to extend the scope of the moneys which may be repaid, while amendment No. 20 seeks to provide that the timescale within which applications may be made for repayment can be appealed.
It does not make any sense to disallow amendment No. 4, in particular, because what I propose would probably save the State money. Some institutions kept special accounts, whereby persons who were totally incapacitated were allowed to retain pocket money of, say, €30 a week. Perhaps the institutions in question were being responsible in this regard in retaining payments in special accounts. In one case where I was able to have the money released, the psychiatric institution in question readily paid back the funding that had accumulated. This was at a time before this issue emerged. I presume, with a certain justification, that there were other accounts held by institutions where the individuals in question were incapacitated but the institutions felt they were entitled to have pocket money of €30. As my amendment would save the Department money, I feel a little aggrieved that it has been ruled out of order. Rather than delay proceedings, will the departmental officials inquire of the institutions whether any of them had accounts in which they held the pocket money of persons who were incapacitated, presumably out of a sense of justice, as those who were not incapacitated were getting their pocket money every week out of their pension or disability payments? Those who could not avail of it at least had their money retained in an account. I suspect this was not just the practice in Portrane, to which the case with which I am familiar relates. Other institutions may have adopted a responsible attitude towards those who are incapacitated and there may still be funding which should be brought into the equation. I do not believe this amendment would impose a charge on the Exchequer. As such this decision should be referred back to those who made it.
Would it be possible for the Minister of State to respond on Committee Stage to some of the questions posed on Second Stage? Am I correct in thinking that he may do so?
I am sure many of the issues raised on Second Stage will arise again during our discussions on the amendments. My officials and I will be as helpful as possible to members.
I asked three questions——
The Deputy may revisit the issues raised by him during discussion of the amendments.
The issues I queried are not covered by any of the amendments tabled.
Does this present a difficulty for the Minister of State?
I cannot raise my query by way of amendment because what I am seeking may involve a cost on the Exchequer.
The Minister of State may not consider any proposal which would impose a cost on the Exchequer.
It relates to other legislation about which we have repeatedly raised questions in the House, namely, the 2001 legislation dealing with the statutory entitlements of persons aged over 70 years to inpatient care. It differs from other legislation which provides that such decisions are made at the discretion of CEOs. It specifies the statutory entitlements of patients aged over 70 years to in patient care. Has an opinion on the matter been sought from the Attorney General or can the Minister of State give an indication as to whether patients in private nursing homes will be entitled to a refund under the 2001 legislation? We know that public institutions are covered in respect of illegal nursing home charges. However, it has not been made crystal clear whether private institutions are covered by it.
Before the Minister of State replies, under Standing Order 149(3), an amendment to a Bill which could have the effect of imposing or increasing a charge on Revenue may not be moved by any member save a member of the Government or a Minister of State. For this reason, the Minister of State may not consider Deputy Twomey's point.
It would also result in a saving to the State.
The Deputy's question relates to previous legislation. The Minister of State may respond, if he so wishes.
The provisions of the Supreme Court judgment of February last year do not apply to individuals who have entered private nursing homes and are in receipt of a subvention but to those in contract beds.
The Minister of State is correct. However, we still have not received any opinion, either in the House or in committee, as to what the position is in terms of the 2001 legislation which provides that everybody aged over 70 years is statutorily entitled to inpatient care.
The legislation to which the Deputy refers is separate. It deals with the issue of subvention.
No. For the past two years I have been trying to get an answer on whether the 2001 legislation provides for payment whether a person is being cared for in a private nursing home.
I will try to be as helpful as possible. The issue raised by the Deputy is not related to what we are discussing today. I have outlined for him the persons covered by the legislation before us and those who will be due a repayment.
As the Ceann Comhairle would say, the Deputy will have to find an alternative way of raising the issue.
We have exhausted every other avenue. This is the last refuge for this question which Deputy McManus has also raised.
It may be addressed on Report Stage when the Bill returns to the Dáil. The committee's hands are tied because of the rule that——
It means that once again nobody is willing to answer the question. There is obviously a problem. If that is so, I will leave it at that. If my interpretation of the 2001 legislation is correct, what we are dealing with is the loose change in terms of the cost that could be incurred by the Exchequer.
I support Deputy Twomey's point. The Government appears to be avoiding the elephant in the room. This issue will not go away and will end up in the courts. I would have thought that members of the committee would be entitled to receive the best legal opinion available to the Government on the issue. We must face up to the responsibilities that the Government has managed to avoid for so long. This legislation was introduced because of a mess created by it. The former Minister for Health and Children, Deputy Martin, and the current Minister, Deputy Harney, have avoided and neglected this issue. When the current Minister took office, she tried retrospectively to deny people their rights. Fortunately, she was shot down in that regard but it now appears that the Government is avoiding another problem — one which could prove extremely costly. Would it not be better to face up to it now and address Deputy Twomey's question?
The Government is not avoiding anything. We have a responsibility as a result of the Supreme Court's decision and we are dealing with it by way of the legislation we should be debating. We realise there are other issues that need to be addressed but they are separate from what we should be dealing with. This is not the time to deal with them.
We have discussed the matter at length and will now move on to amendment No. 1.
SECTION 1.
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.".
It is hoped this legislation will be implemented quickly. I also raised on Second Stage the number of patients likely to be alive by the time the Government gets round to enacting the Bill. Approximately 10,000 were entitled to a refund of illegal nursing home charges at the time the first ex gratia payments were agreed. By the time we had commenced the debate on Second Stage of this legislation that figure had dropped to approximately 5,000. The progress of the legislation through the Houses has been slow. Will the Minister of State indicate how many patients entitled to the repayment are still alive? Will most of the money be paid directly to estates rather than the patients concerned?
The Deputy's figures do not match ours. Almost 11,000 received the ex gratia payment. A further 20,000 approximately are also entitled to it.
I am not in a position to accept the amendment because it would not allow for a commencement order for a certain section of the Bill. If no such order is made, that section of the Bill will be deemed to have come into operation on enactment of the Bill.
Will the Minister of State indicate when he expects the legislation to be commenced? When will the repayments due under it be paid?
We expect the process to commence at the end of next month.
Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2.
I move amendment No. 2:
In page 3, line 28, after "application" to insert the following:
"and includes a connected person of a relevant person where the relevant person made an application but subsequently died or became incapacitated".
Acceptance of this amendment would improve the Bill. The problem with the definition of "applicant" is that it is limited to the person who made the application, as provided for in the Bill. If the relevant person died after making the application, the connected person would not be the applicant within the meaning of the Bill. An applicant can apply but if he or she dies, the connected person is not recognised by the Bill. That is the legal advice I have received on the matter. The Minister of State should consider taking the amendment on board.
I do not accept it. As indicated in the Bill, a relevant or connected person can make an application for repayment. In the event of a relevant person dying, any application made which would result in a repayment will be treated in the same manner as any other asset of the estate. In the event of a relevant person becoming incapacitated, a connected person may make an application. In the case of the connected person being the HSE, any refund made to an intellectually incapacitated person will be lodged to that person's patient private property account. Appropriate safeguards are being put in place under the legislation to ensure the money in these accounts will be used in the best interests of patients.
That is a pity. I cannot understand that at all. If the applicant dies, surely the connected person should be able to fill the gap. That seems to be a straightforward provision that could be included.
As would happen in normal circumstances, any refund will go to the estate of the applicant.
Amendment, by leave, withdrawn.
I move amendment No. 3:
In page 4, to delete lines 13 to 16 and substitute the following:
"(f) in the case of a relevant person who died on or after 9 December 1998—
(i) the legal personal representative of the estate of the relevant person if a grant of representation has issued in respect of the estate,
(ii) a person entitled to extract such grant of representation if a grant of representation has not issued in respect of the estate, or".
The purpose of this amendment is to allow a streamlined probate process for the purposes of the repayment scheme. For the purposes of the scheme, applicants will not be required to obtain a grant of representation. The normal process for the distribution of assets of an estate which takes an average of 18 months to obtain and the necessity to submit a corrective affidavit is not required for the purpose of receiving payment under the scheme. The process will be fast and less complicated for applicants.
Section 48 of the Capital Acquisitions Tax Consolidation Act 2003 requires a submission to the Revenue Commissioners of an Inland Revenue affidavit, an account of the deceased person's assets and liabilities. This is required to obtain a grant of probate or letter of administration which cannot be issued by the Probate Office of the High Court until the affidavit is received. Under the current legislation, where a grant of probate has already been obtained, a corrective affidavit is also required when there is a change to the assets or liabilities of an estate. This appears to be an unnecessary financial and administrative burden for the estimated 40,000 to 50,000 estates which will be due a repayment under the scheme. Therefore, the Probate Office, following consultations with the Department, has offered its expertise in the identification of personal representatives to assist the HSE or scheme administrators to streamline the process of identifying personal representatives.
For the purpose of making repayments under the scheme, the streamlined process will not require the filing of corrective affidavits, which is the normal process when further assets accrue to an estate following the initial dispersal of assets. If there are any disputes in relation to repayments or in the case of assets, other than the repayment due under the scheme accruing to the estate, the normal procedures for obtaining a grant of representation must be followed. This procedure will allow an individual to obtain the documentation necessary to receive payment in a timely, cost effective and very efficient manner.
Amendment agreed to.
Amendment No. 4 has been ruled out of order.
I know I am out of order, but in regard to amendment No. 4, in my name, who will have the job of checking to see if institutions hold accounts where this pocket money was held on behalf of patients? The elderly and people being cared for in institutions received pocket money, some of which the institutions held in accounts for them. I do not know how extensive this practice is, but who will have the job of checking to see if there are other accounts? I cannot believe the account I stumbled across is the only one for a person being cared for in an institution. We know of an institution that clearly did this for one patient and presumably for all patients.
That is a matter for the Health Service Executive.
Of course, it is. The Department of Health and Children is introducing the legislation and monitoring the scheme. There is still work to be done, yet the Minister of State speaks of transferring it to the HSE.
No, it is not a matter of that; section 9 deals with PPPs but it is a matter for the HSE.
Who in the HSE will be responsible for it?
We will deal with this matter later when we come to section 9.
I must stop the Minister of State because the amendment has been disallowed and we cannot discuss it.
Amendment No. 4 not moved.
Section 2, as amended, agreed to.
SECTION 3.
I move amendment No. 5:
In page 5, subsection (1), line 45, to delete "including" and substitute "being".
In this amendment I propose to alter section 3 which deals with the arrangements for the purposes of delivering the repayment scheme. Subsection (1) reads, "The Executive may enter into an arrangement with a person (including any public officer or public body) for the person to provide services, on behalf of the Executive ...". The Minister for Health and Children has clearly indicated that she is referring to a private operator providing the service. However, we propose that it should be part of the normal work of the Civil Service. There is absolutely no reason the State must go outside the Civil Service to manage the scheme. There is sufficient expertise and a track record of management in the Department. In fact, when the HSE was being set up, we were told there were approximately 400 civil servants who would be surplus to requirements. In the Department of Agriculture and Food changes have freed civil servants. I recall a similar situation regarding equality payments. The Civil Service administered the payments to women and no private operator was involved.
The Tánaiste is ideologically wedded to the private sector to the point of being silly about it. We cannot afford to throw money to the private sector simply because of ideology. There is absolutely no gain from this. In this instance I have no doubt that the Civil Service — whether the Department of Health and Children, or the Department of Social and Family Affairs — has the capability to deliver the scheme. It is not the first time money has been paid back.
We are seeing money being squandered on totally unnecessary vanity projects that are trying to create an image for the Government that is founded on self-aggrandisement. The Tánaiste believes the private sector is somehow sacrosanct. This goes against the evidence. The Civil Service has high standards of integrity and is capable of delivering anything, including schemes to ensure people get their money. The number of payments handled by the Department of Social and Family Affairs is mind-boggling to somebody on the outside. Everybody gets his or her money. The level of complaints has been reduced enormously in recent years.
Does the Minister propose to go down the route of privateers cherry-picking the nice contracts? A reply to a parliamentary question I tabled on the award of contracts to private consultancies shows the significant number of consultancy contracts worth more than €100,000 still being offered by the Department, even though Deputy Martin is no longer there. The private sector is milking the taxpayer. I strongly urge that we start using our resources wisely and forget about featherbedding the private sector. We should return the money to people in the way it was done in the past.
Yesterday when the Taoiseach was asked about child benefit payments, he stated there would be a long delay and that he was not even sure when it would be possible to pay the €1,000 early childhood allowance. More than 3,000 children are entitled to this money. Child benefit for non-nationals is also the responsibility of the Department of Social and Family Affairs. Under the legislation, it is intended to pay €40 million to €50 million to a private company to make repayments of health charges. It is important to have an estimate of the number wrongly charged who are alive. If we make repayments rapidly, those who are still alive might get some benefit from them. In the case of estates, unless the estate passes to a living spouse of the person involved, does it matter if there is a delay? If we are happy to allow a situation where parents must wait for child benefit for their children, what is the mad rush to spend taxpayer's money on making the repayments to estates? I am in favour of making them quickly to people who are alive. However, as the Government operates, it is happy that those in one section of society must wait ages for their money, but is prepared to spend a huge amount to make repayments of health charges.
I have tabled two amendments which relate to the making of repayments as quickly as possible but I would like to know how many of the people directly affected are still alive. That figure should be given to the committee. I appreciate that the total number of payments is large. However, I am talking about the number who are still alive. As the Minister of State knows, the average length of stay in a nursing home is between two and three years. This legislation came into effect in December 2004. By December this year the vast majority of the people concerned will have passed on.
There is no truth in the Deputy's last statement. However, I accept that he has raised the issue. I cannot accept the amendment because it would not allow for the appointment of an outside company to administer the scheme. The Government's decision allows for the appointment of an outside company to provide an independent input into the process. The current public tendering process is at a very advanced staged. It is expected a decision on the appointment of a preferred service provider will be made when the board of the Health Service Executive meets on 1 June. The HSE has also stated its support of the decision to engage an outside company as it is not in a position to administer the scheme, as the making of repayments on this scale is not its core work and the resources required to administer the scheme are not available within it, 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 it has indicated this approach was not taken owing to potential industrial relations difficulties, the requirement to assign dedicated HSE resources to supervise 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 that would have to be factored into the tendering process if the company were to take these staff on board.
It is not the case that the Tánaiste and Minister for Health and Children has a particular ideology that means involving the private sector in the process. We have every confidence in the public service and the Civil Service. However, this is the biggest repayment scheme the State has ever undertaken. This is a case where the State was seen to be illegally taking money from vulnerable citizens. Although there is a cost implication, it was felt there should be an independent input into monitoring and implementing the repayment scheme.
Figures have been mentioned in the media regarding the cost of the scheme. Deputy Twomey mentioned a figure of €40 million to €50 million. The value of the contract is not yet known but we do not expect it will be of that magnitude. He also asked how many of the people involved were still alive. It remains to be seen, but we expect the figure to be close to 20,000, and there are 40,000 to 50,000 estates. Priority will be given to those who are still alive. It is only right that this should happen. I cannot, therefore, accept the amendment as proposed.
I will comment on what the Minister of State said first. I did not suggest the HSE should implement the scheme. That is a red herring. Everybody understands that the HSE, because of the way it was set up in such haste without proper preparation, is in a very difficult situation. I did not propose that it be involved in this. I do not see why it should. It has enough headaches. What I am proposing is that, partly because of the establishment of the HSE, there is spare capacity within the Civil Service. However, I understand from the Minister of State that the State cannot be trusted, that we need an independent monitoring service. That is daft. We do not need an independent outsider — there is always a question mark against the term "independent" — to monitor the scheme as if somehow the State cannot be trusted to deliver. That is not my outlook on the world and it is a very curious one that would propose this. I would certainly reject it vehemently.
The Minister of State blithely states the scheme will not cost too much money.
The Minister of State said the contract would not cost as much as Deputy Twomey had indicated and reassured the committee that money would not be a major problem, that there would not be huge costs.
I did not say that. The Deputy should not misrepresent what I said. If she wants to quote me, she should do it honestly.
Will the Minister of State tell me what he is saying because that is what I heard?
As there is a vote in the House, could we finish this as quickly as possible?
I will finish the point. My reading of what the Minister of State said is that a contractor would represent good value for money. That is the position that was taken in the start-up of PPARS. Let us remember what has happened with regard to private contractors — perhaps they bid low and then pile on the costs and additional expenses.
Is the Deputy pursuing the amendment or is she withdrawing it?
I would like to pursue it, but I cannot. May I come back to it?
Does the Deputy want to call a vote?
Let me clarify the matter. Deputy Twomey mentioned a figure of €40 million to €50 million.
That is what the Minister of State said.
I have said the value of the contract is not yet known but I would not expect it to be at that level. The Government took a decision to involve an outside company in the repayment scheme. This company will reassure the public that the scheme is being operated in the most equitable and effective way possible.
I will withdraw the amendment and reintroduce it on Report Stage.
Amendment, by leave, withdrawn.
Sitting suspended at 12.10 p.m. and resumed at 12.25 p.m.
Section 3 agreed to.
Section 4 agreed to.
Amendment No. 6 not moved.
Section 5 agreed to.
Amendment No. 7 not moved.
Section 6 agreed to.
Section 7 agreed to.
SECTION 8.
I move amendment No. 8:
In page 8, after line 47, 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 deals with the time limit on repayments. It aims to ensure that there are no delays in repaying people. The Minister of State has already commented on the commencement date but a time limit should be set for the making of repayments in light of the fact that many of the proposed recipients are elderly. The issue should not be delayed any longer and a clear deadline should be fixed for making repayments, especially to those who are still alive.
I do not accept this amendment because it is not proposed to include a deadline for making repayments, particularly in light of the extended period over which some patients may have been in care and the significant number of records that may have to be checked in certain cases. However, repayments will be made as promptly as possible following receipt of applications.
No deadline has been included in the provisions because some applications, depending on their complexity and whether accurate records are available, will take longer to process than others. An applicant will be given an appropriate timeframe in which to appeal the determination of money to be repaid. Applications will be processed as quickly as possible, having regard to the individual circumstances pertaining to each. The primary consideration will be to ensure that the relevant person receives the full amount of repayment due. The Bill contains a provision which ensures that repayments to living persons are prioritised over those to estates.
Does the Minister of State know, based on the ex gratia payments the Department made in the past, how many of those who will benefit from this legislation are still alive? Does the Department have a list of all those who are alive? The Department was able to quickly draw up a list for the ex gratia payments and one would expect that, in the intervening 18 months, the list would have been finalised or tidied up. The Department should now have a very accurate list of the people who are alive.
Approximately 11,000 people were paid ex gratia payments and their details are on file in the Department. We are sure that there are at least 16,000 living persons who are entitled to repayments.
Is that based on an accurate list?
That is the information we have at present. There are at least 16,000 people, but the figure could rise further.
Is Deputy Twomey withdrawing his amendment?
I will defer it until Report Stage, pending the receipt of further information.
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 9, subsection (1), line 14, to delete "under any enactment".
The payment should also be disregarded for the purposes of non-statutory schemes. While this is not a major issue, it may not be necessary to include the phrase "under any enactment" in the Bill. The phrase could be deleted on the basis of non-statutory schemes.
I do not accept this amendment because it would allow for the prescribed repayment to be disregarded for the purpose of assessment of means under non-statutory schemes. There may be a number of community schemes that are not on a statutory footing in respect of which the prescribed repayment would be disregarded for assessment. This could lead to difficulties and confusion regarding for which schemes the prescribed repayment may be disregarded for the purpose of means assessments.
That seems somewhat harsh. If it is statutory, one is disregarded. If, however, it is not statutory, one is not disregarded. Is that what the Minister of State is saying?
We are keeping it within the legal parameters.
Amendment, by leave, withdrawn.
I move amendment No. 10:
In page 9, subsection (2), line 17, after "benefit" to insert the following:
"(including any subvention to be applied towards any such benefit)".
The purpose of this amendment is to ensure that repayments made under the scheme will be disregarded for the purpose of assessing individuals' means for nursing home subvention payments.
Would the Minister of State mind repeating that?
The purpose of the amendment is to ensure that repayments made under the scheme will be disregarded for the purpose of assessing individuals' means for nursing home subvention payments.
Amendment agreed to.
I move amendment No. 11:
In page 9, subsection (6), to delete lines 29 to 33, and substitute the following:
"may be offset against any liability owed by or in respect of the relevant person.".
I have a legal note on this amendment. The text of subsection (6) is confused. How can a payment made to a person be offset against further payment to be made to the person? The section should refer to the offsetting of a payment against a liability of the person. This is somewhat semantic but I received advice and I wonder if it could be considered.
This matter was considered following Second Stage. I do not accept the amendment because it would broaden significantly the liabilities against which the payment may be offset. It is the intention that the repayment scheme would be as simple as possible. The provision to include offsetting charges imposed under the Health (Charges for ln-Patient Services) Regulations 2005 is in view of the fact that a number of cases exist where a patient due a repayment has refused to pay charges for their care under the above regulations while this repayment is outstanding. It is the intention, therefore, that any repayment will be net of any outstanding charges for public long-stay care.
I withdraw the amendment but I may reintroduce it on Report Stage.
Amendment, by leave, withdrawn.
Section 8, as amended, agreed to.
Amendment No. 12 not moved.
Section 9 agreed to.
Section 10 agreed to.
SECTION 11.
Amendments Nos. 13, 15 and 16 are related and will be discussed together.
I move amendment No. 13:
In page 12,subsection (1), line 16, after "non-recurring" to insert the following:
"and are not expenses which would, in the ordinary course of the provision of such public health services, have otherwise been expenses met by an allocation from the Minister for Finance or another Minister of the Government".
The purpose of this amendment is to ensure that any moneys donated under the scheme will be used to provide once-off service improvements in areas relating to older people or disability. The intention would be that moneys would be disbursed from the fund to cover the cost of improvements, refurbishment and upgrading of the facilities in long-stay institutions. Discussions have taken place with the Department of Finance to ensure that such payments will not lead to additional ongoing revenue costs.
The fund will be monitored by the HSE and audited by the Comptroller and Auditor General to ensure that the money in the account is used appropriately and for the purpose intended. Reports on the operation of the fund will be made to the Minister and these will be laid before each House of the Oireachtas. Any money that is donated to this fund will not be subject to capital acquisitions tax liability. It is the intention that the wishes of those donating will be considered when making allocations from the fund, subject to legal and practical constraints.
Prior to discussing the legislation, I wrote down three main headlines, namely, the 2001 legislation, the number of patients still alive and these amendments in regard to ring-fencing this funding if people do not take the payments and send them back. A fund is being set up within the HSE for this purpose and it will be ring-fenced. I asked the Minister of State on Second Stage for what the money will be used. He stated that it would not be used for day-to-day expenditure. He has had plenty of time to think about this in the past six months. We should set out exactly what it will be used for, in order that patients can be informed. One could say, for example, that it would be used to build a new hospital in Dingle for the care of the elderly.
As we do not know what amount of money we will receive, we cannot be exact.
The Minister of State could give an indication. People will not believe that the fund will be used appropriately if some indication is not given regarding its intended use, apart from saying that it will not be used for day-to-day expenditure. A list of projects should be proposed and if enough money is received, it could be used for whichever one of these is chosen. People will not believe the Minister of State if he says that the fund will be ring-fenced for purposes other than day-to-day expenditure. It could be used for projects which have already commenced or in respect of which commitments have already been made. Nothing in what the Minister of State said would reassure people that this money will be spent on projects above and beyond the commitments already made.
We have said that the moneys will be used for once-off service improvements such as upgrading facilities in particular institutions. It will be used specifically for services for older people or the disabled. It is an insult to both the HSE and the Comptroller and Auditor General to say that no one will have any faith in it.
It is more a case of a lack of faith in the Government rather than the HSE.
People can specify how they would like the money to be spent when they make donations to this special fund. We will take their views on board. It would be foolish of us to say that we are going to commence building projects. People said that they were satisfied with the care and excellent level of treatment they received and that they would be happy to make a contribution towards the cost of that care. A number of people expressed the view that it would be wrong for them to accept this repayment.
At this stage, it would be difficult for us to gauge the number of people who will hand over money. It will also be possible for people to make donations to the fund. We could be very surprised by the amount of money in the fund but we will be obliged to wait and see. It would be foolish to discuss projects when we do not know exactly how much money we will have to spend on them.
The Minister of State is wrong. Last week, Government representatives were on the airwaves making all manner of announcements about the millions the Government would spend on projects for care of the elderly and disability services between now and 2010. What the Minister of State said is that money from the fund may be used to pay for the announcements on projects made by Government representatives. I am cynical because of what has happened.
People who pay into the fund may be more supportive if they could decide where the money would go, such as back to the institution in which they were treated. If people are to pay money into a fund, they would like to know the purpose for which it will be used. We are not sure about where the funding referred to by Government representatives will be spent. Many promises were made regarding institutions for care of the elderly that were supposed to have been opened in the past ten years. It has now been promised that they will be open in the next five years. There is a sense that the Government is not trusted on this issue. The Minister of State should outline how this money — there might be €10 million, €20 million or €100 million in the account at the end of next year — will be spent. It would be good practice on the part of the Government to indicate how the money will be spent.
We stated that the money will be used for improving facilities for long-stay care for older people and those with disabilities. One of my amendments aims to insert the phrase "And are not expenses which would, in the ordinary course of the provision of such public health services, have otherwise been expenses met by an allocation from the Minister for Finance or another Minister of the Government". The HSE and the Comptroller and Auditor General will have a role to play and a report will be laid before the committee on how the money is spent. It would be too prescriptive to specify at this stage what we will spend it on. From the point of view of reassuring the public, we have tried to do our best. As the main Opposition spokesperson, the Deputy also has a responsibility to reassure people. The fund is in place. I accept the Deputy has genuine concerns, but we have made as good an effort as possible in the circumstances to indicate to people the purposes for which this money will be spent. There should be no scare-mongering or leading people to believe it will be used in PR campaigns or anything else. It will be used specifically as is set out in the legislation. To be any more specific would be unrealistic when we do not know exactly what moneys will be paid into the account.
The Minister of State is wrong. We do not expect the money to be used for PR campaigns. There is already Government commitment to funding for certain institutions around this country. If people give a significant donation to this fund, they would like to know what it will be used for. If they do not themselves decide it goes to the institution in which their relative or they themselves resided, and they decide it goes into this fund, they would like to know what the money will be spent on. It should not be beyond the Minister's imagination to come up with at least two or three projects on which the money will be spent. It is not asking too much to expect the Minister to come up with a few projects. The Minister should re-examine this issue and return to it on Report Stage.
Does the Deputy wish to speak to amendment No. 16?
Amendment No. 16 is similar. The purpose is to ring-fence the funding and put a time limit on the spending of it so that it will not be left sitting in an account indefinitely while we try to make up our minds what to spend it on. It would be quite possible for the Minister, during his week off in June, to think up a few projects on which to spend the money.
I presume the Minister of State does not have a week off in June.
It is envisaged that the fund will be administered by the HSE. That will include managing and assigning moneys and accounting for and reporting on the fund. If it is not practicable to assign funds to a specific unit, funding should be ring-fenced for the same service in the same area. The HSE intends, as soon as possible, to establish a working group incorporating representatives in service areas and finance to agree the criteria for selecting the service improvements that will benefit from the disbursement of the fund. We will take on board the wishes of the people making the donations.
Amendment agreed to.
I move amendment No. 14:
In page 12, between lines 45 and 46, to insert the following 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 is a simple means of ensuring thatdonations are acknowledged and that donors are informed of the amount of money being handed over to an institution.
I do not accept the amendment because section 15(a) already provides that the scheme administrator shall 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 deduction 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 will help to reduce the number of potential appeals where an individual can determine how a calculation was reached for a particular repayment amount.
Amendment, by leave, withdrawn.
Amendments Nos. 15 and 16 not moved.
Section 11, as amended, agreed to.
SECTION 12.
I move amendment No. 17:
In page 13, lines 1 to 8, to delete subsections (2) and (3) and substitute the following:
"(2) Subject to subsection (3), the scheme administrator and, if different, the Executive shall, as soon as is practicable after the commencement of this section, prepare and cause to be promulgated a code of practice to be complied with by a person accessing and processing any relevant records pursuant to subsection (1), or a person referred to in subsection (4) having any relevant information in the person’s possession, custody or control, in so far as the relevant records or relevant information, as the case may be, consist of personal data.
(3) The scheme administrator and, if different, the Executive shall not perform the function under subsection (2) except after consultation with the Data Protection Commissioner within the meaning of the Data Protection Acts 1988 and 2003.”.
This amendment is being introduced following further consultation with the Data Protection Commissioner. The amendment is designed to provide assurance that the processing of applications under the scheme will be done in an efficient and transparent fashion while respecting the privacy rights of individuals. The amendment provides that the processing of applications will be in accordance with the published code of practice drawn up following consultation with the Data Protection Commissioner.
Amendment agreed to.
Section 12, as amended, agreed to.
Section 13 agreed to.
SECTION 14.
I move amendment No. 18:
In page 15, between lines 28 and 29, to insert the following 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.”.
I presume from the comments the Minister made previously that the accountability issue is also covered.
Amendment, by leave, withdrawn.
Section 14 agreed to.
Section 15 agreed to.
SECTION 16.
I move amendment No. 19:
In page 16, subsection (1), line 10, to delete "A person" and substitute the following:
"An applicant or where the applicant had died or become incapacitated, a connected person of the relevant person".
I am proposing that there be a specific definition as to who can appeal. Otherwise anybody could appeal. It should also be provided that if the applicant dies or becomes incapacitated a person connected to the applicant can appeal.
I do not accept the amendment because it is not proposed to allow an applicant to appeal an application that is received after the prescribed cut-off date of this scheme.
That is a different amendment. This is about who can appeal. At the moment anybody in the entire universe can appeal.
I am taking amendments Nos. 19 and 20 together.
I did not ask the Minister to do that. I am asking for a response in respect of amendment No. 19.
The amendment is out of order.
Is amendment No. 19 out of order?
Amendment No. 20 is out of order. We are on amendment No. 19.
I was but the Minister is not. That is the problem. Surely, only a dissatisfied applicant should be in a position to appeal. It is not logical that anyone else could.
Only a person who has applied to the scheme can appeal.
The section provides that a person may appeal.
That is a person who is eligible under the scheme.
How does the Minister of State know? That is not stated. Is there a definition of "person" at the beginning?
The HSE has advised us that is its legal advice.
I suspect that perhaps it could be improved a little, if the Minister would open his mind.
If the Deputy can assist us in that regard we would be more than happy.
I am trying to do that. That is why I went to the trouble of tabling an amendment which, I presumed, would be considered. I am doing my best. The Minister is the man with the resources. I could reintroduce it on Report Stage to give the Minister a chance to consider it.
The Deputy can do that but the advice of the Attorney General on this is that only those who make the application are entitled to appeal.
It provides that a person may appeal.
I will have the matter examined.
I will reintroduce it on Report Stage
Amendment, by leave, withdrawn.
Amendment No. 20 not moved.
I move amendment No. 21:
In page 16, subsection (3)(a), line 25, to delete ”years“ and substitute ”years’’’.
Amendment agreed to.
Section 16, as amended, agreed to.
SECTION 17.
Amendment No. 22 not moved.
I move amendment No. 23:
In page 18, subsection (2), line 35, before "the" to insert the following:
"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, and in default of appeal, or on the dismissal of such appeal, thereupon”.
Where the contractors decide there has been misrepresentation they can, after going through an elaborate appeal system, go straight in to claim back the money. When dealing with frail individuals, it would be fair to have another safeguard in the system, whereby the person concerned would be notified that he or she had been found by the contractor to be guilty of misrepresentation and that the process would proceed. If there was a process by which he or she could address the issue or even convince the contractor that it was wrong in that opinion, it would be of benefit to everybody. We are not talking about persons who are likely to commit criminal acts. We are talking mainly about a community that has been the subject of a criminal act, if one can put it that way, by the State. I suggest an additional safeguard should be put in place, whereby a person would be informed by letter that the process would proceed because of a belief that he or she was trying to misrepresent or defraud the contractor. That would be an additional element to the process.
This deals specifically with fraudulent claims.
I am aware of that but it does not give a person a chance to come back on the matter.
If it becomes clear to the Health Service Executive that a fraudulent claim has been made and moneys have been paid under false pretences, it will write to the person who has received the money to bring to his or her attention that the money has been paid under false pretences and seek to have it repaid.
I appreciate that but there will not be an opportunity for the person concerned to outline his or her position. It is always possible that the contractor or the HSE is fallible and will come to the wrong opinion.
I would imagine a certain communication from the person concerned would follow the letter from the HSE seeking to have the moneys repaid.
I have no problem with the HSE seeking to have the money repaid if there has been fraudulent activity but that is not the issue. It is that the contractor forms an opinion that this is fraud but the Minister is not giving the elderly person or his or her dependants an opportunity to say it is not.
The court will determine the matter. It will make the decision.
It is not acceptable to drag people into court to find that they might be innocent. That is a terrible idea.
If they are innocent, there will not be a problem. It is not as if the HSE will pay out the money on a Tuesday and chase after people on the Wednesday looking for it to be repaid. We are talking about cases where it has clear evidence. The Deputy spoke about the need to achieve value for money and to spend money wisely. If we are paying out, we want to have certain safeguards in place. That is what we are doing in this instance.
That is all I am looking for also. I am only looking for a safeguard for a limited period of 14 days. I will reintroduce the amendment. All I can say is that the Minister of State is hard-hearted.
Amendment, by leave, withdrawn.
Section 17 agreed to.
Section 18 agreed to.
SECTION 19.
I move amendment No. 24:
In page 19, subsection (1)(b), line 36, after “or” to insert “to”.
Amendment agreed to.
I move amendment No. 25:
In page 19, subsection (2)(b), line 44, after “or” to insert “to”.
Amendment agreed to.
Section 19, as amended, agreed to.
Sections 20 to 22, inclusive, agreed to.
NEW SECTION.
I move amendment No. 26:
In page 20, after line 38, to insert the following new section:
"23.—Part I of the First Schedule to the Ombudsman Act 1980 is amended by the substitution for "Department of Health" of the following:
"Department of Health and Children"
Persons appointed pursuant to section 16(3) of the Health (Repayment Scheme) Act 2006 to consider appeals under section 16(1) of that Act”.”.
The amendment which follows discussions with the Office of the Ombudsman provides that the appeals process comes under the jurisdiction of the Ombudsman and allows an applicant the right of appeal to the Office of the Ombudsman. The wording to be inserted is consistent with that used in the Agricultural Appeals Act 2001.
Amendment agreed to.
Title agreed to.
Bill reported with amendments.
I thank the Minister of State and his officials for attending. I also thank members of the committee for their constructive contributions to the Bill and facilitating its consideration.
