Disability Bill 2004: Committee Stage.
I welcome the Minister of State at the Department of Justice, Equality and Law Reform with responsibility for disability, Deputy Fahey, and his officials. The purpose of the meeting is to consider the Committee Stage of the Disability Bill 2004. I also welcome Deputies Stanton and Lynch.
Amendments No. 2 is an alternative to amendment No. 1. Therefore, amendments Nos. 1 and 2 may be discussed together by agreement.
I move amendment No. 1:
In page 5, subsection (1), line 30, to delete "Disability" and substitute the following:
"Assessment and Services For People with Disabilities and Miscellaneous Provisions".
I welcome the Minister of State and his officials. This is probably the most important legislation that has come before the House for some time that will impact on people with disabilities. I look forward to the debate on the amendments in the coming days and hope there will be positive interaction. We are all here for the same purpose, to bring forward the best legislation possible to impact on thousands of people now and well into the future. It is an onerous responsibility. I wish the Minister of State and his officials well in this work and congratulate them on the work they have done. It is challenging for all of us because there are all kinds of pressures on us to ensure we bring forward the best legislation possible.
Amendment No. 1 deals with the Title to the Bill. I suggest the Title be amended to reflect what we all want to do. It is an assessment Bill and deals with the provision of services for people with disabilities. It has also a number of important provisions relating to genetic testing. Most important of all, the Bill is about people. That is the reason the amendment includes in the Title an assessment and services for people with disabilities.
We must not lose sight of the fact that the Bill is primarily about people. Last year the Education for Persons with Special Educational Needs Act was changed to reflect the fact that it is about people. The Title to this Bill — Disabilities Bill 2004 — does not reflect that. Legislation in other countries, such as in the United States, reflects it. An example is the Americans with Disabilities Act. It would be a good starting point to examine the Title because it qualifies what is in the Bill. If it is agreed to amend it, following this debate, the Minister could reconsider the Title to reflect the view of members and various groups on whom this legislation will impact.
This Bill is about an assessment. We will contend later that there should be a right to an assessment with no qualifying issues. It is also about the right to services and what that means. There are also issues in regard to the role of the courts and so on. I acknowledge the Minister has gone a long way in providing an appeals mechanism. While we contend he has not gone far enough, the issue can, at least, be debated. The Bill deals with assessments and services for people with disabilities, a term which must be defined, and with miscellaneous provisions. The Title we are putting forward reflects what is or should be contained in the Bill to a greater degree than the Title "Disability Bill 2004".
The Minister and I almost had a discussion this morning on the airwaves. This is a process which we hope will make life easier for those who up to now have had to overcome obstacles which none of us could imagine overcoming in our lives.
The Title to the Bill is crucial. We will hear during our debate of other Acts dealing with education for people with special needs. The legislation, if enacted as drafted, will be known as the Disability Act 2004 and will be quoted by the disabled and those who provide a service to, or who accompany and support, persons with disabilities. For that reason it is important we get the Title right. The Title is not only important from an optical or vocal viewpoint; it is about enshrining in legislation what those of us who are not disabled expect as a right.
The argument has been made that if one incorporates rights in legislation, it eventually ends up in the courts. However, very few cases taken by persons with disabilities have ended up in court. Those that have were high profile and were so awful they stuck in our minds. It must also be acknowledged that the courts have upheld most of the cases in that regard. It is for that reason it is important to include the word "rights" in the Title and to enshrine rights in the legislation.
The argument has been made that €4 of every €5 awarded is paid to solicitors and €1 goes towards providing a service. I have heard all those arguments before in relation to free education, equal pay for women and so on. It is always suggested that the State cannot afford to pay. However, there are certain things we cannot afford not to do, such as giving rights to people with disabilities. History will show our track record in this area has been disgraceful.
I agree with the Minister that we are today trying to redress generations of neglect. Why are we not doing it properly? I hope the Minister will be true to his statement in the Dáil that he is prepared to listen and is open to debate and discussion, something which disabled people have been seeking for many years. Disabled people recognise the situation cannot be addressed overnight but they equally recognise it must be addressed. I hope the Minister is open to that.
There are few in the world who will have an opportunity to do something fundamental and be remembered for it. Most of us could probably name off the top of our heads five people who did something so fundamental for others they will be forever remembered. The Minister has an opportunity to be remembered for his work on this legislation and should grab it with both hands because he is unlikely to get such an opportunity again in his lifetime. I may never have such an opportunity but the Minister has such an opportunity before him and he should seriously consider it. Including the word "rights" in the Title is the first step to ensuring that people who have struggled against the odds can expect to be treated like the rest of us.
I welcome the opportunity to discuss this historic legislation, the Disability Bill 2004. Before addressing the details of the amendment, I again reiterate that this legislation provides an opportunity for the Minister and State to bring all people with disabilities into mainstream society. I welcome this progressive and positive legislation. I must also declare a personal interest in that I speak also as the parent of a daughter with Down's syndrome. I have done a great deal of work during the past ten or 12 years with disability groups and have been chairperson and treasurer of the Dublin branch of Down's Syndrome Ireland. I take this opportunity to thank and commend all disability groups for their excellent work, support and advice.
I look forward to the day when parents of children with a disability do not have to kick, scream, protest and threaten to go to court to obtain services. Rights for people with disabilities is, sadly, an issue which has been omitted from the legislation. I agree with Deputy Lynch's comments on the court system. I am one of those who threatened to take a case to court when services were not provided for my daughter when she started school. I did not proceed as, fortunately for my family, the local Department of Education official and school showed a little creativeness. That happened some 14 years ago. I should not have had to threaten to take legal action to get services for my daughter. Many parents do not take cases to court because of all the upset it causes.
Acceptance of the amendments could assist in this area. The Minister should not miss the opportunity to address this issue. All people with disabilities want is equal rights in accordance with the Constitution. I remind members that 8.3% of the population have some form of disability or impairment. It is important we do not forget those people. I support amendment No. 2 because I am concerned the Bill as drafted will be in breach of the European Convention on Human Rights. The right of access to the courts is dealt with in Article 34.1 of the Constitution. Article 6 of the European Convention on Human Rights also deals with right of access to the courts within a reasonable timeframe. The right to appropriate education is dealt with in Article 42.4 of the Constitution. Members may recall the O'Donoghue case of 27 May 1993 in that regard.
There are major flaws in this legislation which need to be dealt with. I state my case from a human rights and constitutional viewpoint. I understand from where officials within the Department of Health and Children, and the Minister, are coming. The fingerprints of the Department of Finance are to be seen throughout the legislation. I also note some of my amendments have been ruled out of order because of a potential charge on the Exchequer. I understand the concerns about the financial implications of amendment No. 2. However, the Minister and Government should not permit the Department of Finance legal eagles to set the agenda in terms of the provision of services for people with disabilities.
I welcomed the progressiveness of budget 2004 in terms of its provision of services. However, as already highlighted in this debate, resources are necessary for such services and they are not being provided. I have many concerns in that regard. There is much talk and positive spin but the reality is that, currently, there are 3,000 people with intellectual disabilities on a waiting list for services. We must ensure services are put in place during the next few months to assist them.
I thank the Deputies for their opening remarks. We are all here to try to improve the lives of people with disabilities and to try to put in place a comprehensive response by the State to people with disabilities. This is the objective of the Government's disability strategy, of which this Bill is just one part. We all agree on the history of neglect of people with disabilities. The entire structure of the provision of services for people with disabilities grew up through services provided by the religious, particularly the Catholic Church, and services provided by voluntary bodies. Despite the considerable resources that have been made available in recent years, particularly since 1987, we are still trying to catch up.
It is important to consider the existing situation and the proposals for the future. On Second Stage debate, Members still used the premise that we were talking about the situation that existed ten or 14 years ago as Deputy Finian McGrath just said. We are talking about what pertains today and the Government's proposals to make improvements. I am prepared to listen openly to the proposals being made. However, for the benefit of a good debate, it is important to stick with the facts and debate what is possible. Some of the proposals made are impossible, which we will address as we proceed.
We have listened very carefully to the contributions made on Second Stage and to the proposals made by the DLCG. We have introduced comprehensive amendments to respond to the concerns expressed by Deputies, including those present, and by the DLCG. We have been unable to respond to some areas and will be unable to do so. However, I am prepared to discuss those as we go through the relevant sections of the Bill.
Amendments Nos. 1 and 2 propose to insert a new Short Title and seem to be directed to change the orientation of the Bill. Amendment No. 1 seeks to place major emphasis on the assessment and related services provided in Part 2. In doing so, it relegates the remaining provisions of the Bill, which are addressed in Parts 3 to 7, to the status of miscellaneous provisions. The Bill represents a more comprehensive approach to the concerns of people with disabilities than the Title proposed seeks to convey. As a result I am not disposed to accept the amendment.
I am sure the purpose of amendment No. 2 is linked to later amendments, which envisage direct access to the courts to enforce rights under the Bill. As Deputies will be aware, I do not believe that putting exclusive emphasis on rights will give us the most effective results. In preparing the national disability strategy, the Government sought to introduce practical and effective measures to support participation by people with disabilities. This includes, but is not exclusively concerned with, the provision of rights to assessment, provision, complaint, appeals and enforcement, as promised in the programme for Government. In the circumstances I do not propose to accept this amendment, which presents only a partial view of the content of the Bill. However, we will debate this further when we reach the relevant Part of the Bill.
We are off to a great start with the Minister of State rejecting the first two amendments. Part 7 is entitled "Miscellaneous". Part 2 deals with assessment, Part 3 with access to buildings and services and sectoral plans and Part 4 with genetic testing. Some people consider that genetic testing should not be contained in the Bill and should be in separate legislation. Part 5 deals with public service employment and Part 6 with the centre for excellence in universal design, which some people would also argue should not be contained in the Bill. Parts 2 to 6, inclusive, all deal with services. Amendment No. 1, which proposed to delete the word "Disability" and substitute the words "Assessment and Services For People with Disabilities and Miscellaneous Provisions" reflects the purpose of the Bill, as it refers to people. The term "Miscellaneous Provisions" relates to Part 7, which is what the Minister of State has highlighted.
I do not believe any conflict exists and the new Title would indicate a more humane approach. The current Title, "Disability Bill 2004", appears remote. We want to soften the Title as has been done in other countries, which have reflected the fact that the legislation concerns the assessment of and services for people. I propose that we change the Title as the Bill is concerned with services and assessment and not just disability. While the Title "Disability Bill 2004" does not mean anything and does not reflect the purpose of the Bill, anyone reading the proposed amended Title would understand the purpose of the Bill, which relates to the assessment and services for people with disabilities. Miscellaneous provisions appear in Part 7.
The Title to a Bill should let people know its purpose, which is the effect of my amendment. Earlier I suggested that the Minister should hold fire for a while and that when we had finished debating the contents of the Bill we should return to discussing the Title. We are not making this proposal to knock the Minister of State; we are trying to improve the Bill, which is concerned with people, assessment and services. The assessment part includes the whole appeals mechanism.
We are trying to provide services for people with disabilities; I am talking here about people. I do not know why the Minister of State is afraid to include the word "people" in the title. He should grasp this issue now and recognise that the suggestion from this side has merit. The Title should reflect the purpose of the Bill. The Title "Disability Bill 2004" could mean anything. A student in years to come will ask what the Bill is about.
We need a broader and slightly longer Title which reflects the contents of the Bill and what we would like to see in it
I thank the Minister of State for his reply, which reflected the fundamental differences between both sides. We will deal with other sections that address the issue of access. The DCLG was established by the Government, which consulted with the group for two years. The DCLG has clearly stated it does not expect these services to be provided overnight because it recognises the capacity does not exist, as everyone knows. However, once we have the capacity, the DCLG expects the services to be delivered. The difficulty with the Title is that even when the capacity within the service becomes available, people will have no right to the service. The Title is vital and needs to enshrine the word "rights".
The Government's explanatory document states:
The Disability Bill 2004 is part of a framework of measures which supports social inclusion. Other essential elements in the legislative framework are:
the Employment Equality Act 1998
the Equal Status Act 2000
the Equality Act 2004
the Education for Persons with Special Educational Needs Act 2004
the Comhairle (Amendment) Bill 2004.
It goes on to refer to eligibility. What does eligibility mean in this context? Is it the same eligibility as applied in respect of a medical card or social welfare payments? The Minister of State should consider whether or not eligibility becomes a stronger element of the delivery of service if rights are not enshrined in this Bill.
I acknowledge the Minister has many responsibilities and this is a complex subject. However, we are responsible for passing legislation which will be interpreted by others and this interpretation will be on finite points such as eligibility. Does it mean people will be means tested even when the capacity exists? For instance, will a health board which does not have the finances or decides that buying a new office block is more important be the decision-maker on whether or not someone is given a service? This is the reason it is vital to have rights enshrined in the Bill.
I thank the Minister of State for his response. Amendment No. 2 is being debated, as is the question of a rights-based approach. Sadly, the State seems to constantly oppose rights-based legislation. This blatant opposition by the State was made abundantly clear on 13 June 1999 in the progress report on the implementation of the recommendations of the Commission on the Status of People with Disabilities entitled Towards Equal Citizenship. The report states the Department of Finance cannot accept these recommendations, which imply the underpinning by law of access to and provision of services for people with disabilities as a right. It states that this right, if given a statutory basis, would be prohibitively expensive for the Exchequer and could lead to requests from other persons seeking access to health and other services without regard to the eventual cost of providing these services.
I am concerned the Minister and the Government is allowing the Department of Finance to put its fingerprints all over the legislation and block the services. My position and that of the majority of the people was vindicated by the comments of Mr. Justice Barr in the High Court in October 2000 when referring to the State pleadings of scarce resources and excuses to deny disabled persons their rights. Mr. Justice Barr said in his judgment:
It seems that the reason for that unhappy state of affairs is a lack of understanding by finance providers of the status and implications of the constitutional obligations of the State and in consequence an inability on their part to prioritise in constitutional justice claims made on the resources of the State by those having such rights which the State has an obligation to vindicate in full and as a matter of urgency.
Mr. Justice Barr has stated what many of us are asking. I urge the Minister of State to look at the situation. We are not pleading for rights but demanding them. This is a question of social justice and equality. Amendment No. 2 puts that view very strongly. I urge the Minister of State to review his position. The course proposed by the Government will only end in a worse scenario.
The Bill has always been referred to under its working Title as the "Disability Bill". It is being delivered as part of An Agreed Programme for Government. It has been referred to as the Disability Bill throughout the extensive consultation process. I do not propose to make the change suggested. However, in response to Deputy Stanton's comment, I am prepared to keep an open mind on his amendment, pending the other amendments under discussion.
Amendment No. 2 is more appropriate to the section specifically dealing with this issue. I will be prepared to deal in more detail at that stage with eligibility and the other issues raised by both Deputies.
I thank the Minister of State for keeping an open mind on the matter, which is what is needed. I am pleased he has also promised to keep an open mind on amendments proposed by this side of the House and on the overall debate on the Bill. I contend that things do not have to always remain the same, especially if something can be improved by change. This Bill was known as the Disability Bill but this should not mean it must always be known as such. The programme for Government is not set in stone like the ten commandments; it has changed and it is flexible of necessity. If the Opposition proposes amendments to the Title to the Bill to more accurately reflect what we wish the Bill to contain, then the Minister of State should keep an open mind on the matter. We may return to this matter on Report Stage and perhaps improve on the amendments being proposed in order to underline that this Bill is about people who are vulnerable and who need assistance, support, services and assessment. As Deputy Lynch stated, we have historically failed these people. This is a golden opportunity to put it right.
The Minister will probably go down in history if he brings forward positive legislation but if this Bill is a disaster, the Minister will be known for that also, which is not to be desired. We want the Bill to be the best legislation for the people and that is the reason I wish the word "people" to be included in the Title, so that it is clear it covers people with disabilities.
Amendment No. 2 is a more powerful amendment and I believe the Minister of State recognises this fact. If it were to be accepted by the Minister of State, it would fundamentally change the Bill and would probably address the concerns of virtually every group within the disability community. We believe the legislation is not strong enough. It does not do what it sets out to do and should be changed. The fundamental change should be seen in the Title. The insertion of the word "rights" does not mean that every person with a disability will be in a queue outside the Four Courts. That is a disingenuous and wrong argument. It has never happened before even though those people have endured more provocation than most. The Minister of State does them a disservice by saying it.
I agree with the previous speakers. It is not a rights-based Bill but rather a resources Bill. The Title needs to be changed. I will be proposing amendments on Report Stage. Our proposal will be to delete lines 5 to 28 of the Long Title and substitute the following:
An Act to affirm and protect and vindicate the equal rights of people with disabilities to allow for positive action measures to enable people with disabilities to reach their full potential, to live with maximum independence, autonomy, privacy and dignity and to participate in and contribute to Irish society on an equal basis, to guarantee a minimum standard for the provision of disability-specific services, to guarantee the progressive realisation of equal access to all public buildings and services and to provide for related matters.
The Title and the Bill are not consistent with the recommendations of the commission on the status of people with disabilities. Nor are they consistent with the recommendations of the Government's disability legislation consultation group. This is not good enough for people with disabilities or their families. Therefore we will be proposing significant changes on Report Stage. I am disappointed that the Minister of State has not accepted the arguments. The Title needs to be changed.
On the basis that the Minister of State will consider his proposal, will Deputy Stanton withdraw his amendment?
Amendment, by leave, withdrawn.
I move amendment No. 2:
In page 5, subsection (1), line 30, to delete "Disability" and substitute "Rights of Persons with Disabilities".
The committee divided: Tá 4; Níl 7.
- Bruton, Richard.
- Lynch, Kathleen.
- McGrath, Finian.
- Stanton, David.
- Ardagh, Seán.
- Brady, Martin.
- Fahey, Frank.
- Glennon, Jim.
- Hoctor, Máire.
- Ó Fearghaíl, Seán.
- O’Connor, Charlie.
Amendment declared lost.
As amendments Nos. 4 to 6, inclusive, are alternatives to amendment No. 3, it is proposed to take amendments Nos. 3 to 6, inclusive, together by agreement.
I move amendment No. 3:
In page 5, lines 31 to 39 and in page 6, lines 1 to 5, to delete subsections (2) and (3).
This amendment proposes to remove the right from the Minister to delay the introduction of the Bill. A Bill would normally be signed by the President and be enacted from that point. The manner in which this section of the Bill is drafted means that the Minister can introduce the Bill in a piecemeal fashion, virtually order by order. It is bad enough that the Bill is not rights-based and that there is no guarantee of service and no ring-fencing of the funding but it is fundamentally unjust to leave it at the discretion of the Minister to decide when the Bill should commence and which elements should commence.
I do not understand why the Minister of State would have any interest in introducing the Bill in this fashion. It would not benefit him or the Department in any way but I can see how it might benefit the Department of Finance. However, Deputy Fahey is not a Minister of State in the Department of Finance. This amendment would remove that right and allow the legislation to be enacted in the normal way. The Bill is flawed enough without our being here in two years' time asking for the Minister of State to come before the committee to explain the reason the orders had not been signed.
I support this amendment. We cannot allow a situation where legislation is enacted in piecemeal fashion. There are concerns that the fingerprints of the Minister for Finance are all over the Bill. This amendment aims to push the agenda for people with disabilities to ensure the legislation is enacted forward in a constructive and positive manner. The Minister of State needs to get a grip on his own position and wake up to the reality that he has responsibilities towards those with disabilities. His loyalty should not lie anywhere else. I urge other members to support this amendment.
Amendments Nos. 4 to 6, inclusive, are technical amendments which are proposed to make use of the active voice. The use of the active voice in legislation is recommended by the Law Reform Commission in its report on legislative drafting. It is important that the style of legislation represents best practice and is more legible for members of the public. I am not sure why these amendments are grouped with amendment No. 3 because they deal with a different matter.
On amendment No. 3, I am concerned at any intention to delay the implementation of the Bill by the use of subsections (2) and (3). I ask the Minister of State for his views on the timescale for the implementation of the Bill. It would be useful information for us and everyone else.
The Bill should include a notification of when and how the Bill will be implemented and who will implement it. Once the President signs the Bill the sections must be brought into force by ministerial order and I ask the Minister of State to clarify the position. In the Minister of State's view, how soon will the Bill have an impact on the lives of people with disabilities? When will the sections commence? This is important to know. When will the Bill in total come into effect? Other legislation has in the past been passed by the Oireachtas and has not been put into effect for years. I refer to the Youth Work Act, which was passed in 2001. One or two sections have been implemented, while the remainder gather dust.
The disability legislation consultation group has pointed out that the disability-specific services which should be available by right to those with disabilities are those which will enable them to participate fully as equals in Irish society and to maximise their ability to live their lives as independently as possible to their full potential and as equal citizens. This means housing, training and employment support, transportation, access to communications technology and many services that have nothing to do with health or basic education.
The tone of this Bill seems to be that people with disabilities are dependants who need to be cared for. It must be recognised that people with disabilities are people with equal rights who are prevented from exercising them by a society that is exclusive by design. This Bill does not recognise this and continues to patronise them. The legislation should assert the right of people with disabilities to an independent assessment of need and such an assessment must be made independently of service providers and independently of the Health Service Executive or the Department of Education and Science with their inevitable organisational and financial constraints. Otherwise the assessment will reflect the individual's true needs and therefore will only be a statement of what is currently available to the person. That is not good enough. My party opposes the Government's model for the assessment and appeals process, which is provided for in section 1.
Section 1 provides for the commencement orders by the Minister for Justice, Equality and Law Reform, save Part 2 , the commencement of which is a matter for the Minister for Health and Children following consultation with the Minister for Education and Science. These Ministers have primary responsibility for the matters covered by Part 2. Amendment No. 3 seeks to remove from the Bill provisions relating to commencement, the intention being to allow for immediate commencement on enactment. Such an approach would be unusual for a Bill of this size, diversity and complexity. While I assure the committee the intention is to move forward as quickly as possible once the Bill is passed, there are some significant issues associated with the enactment and implementation of the Bill which must be in place before its enactment. These issues are being aggressively dealt with at present. For instance, the preparation of the regulations under which the Bill will be enacted is moving ahead through the Health Service Executive.
The standards, which are an important component of the Bill, are being worked on in the Department of Health and Children by HIQUA. I am not in a position to give timescales at this stage. As the Bill progresses through this Stage and Report Stage, I hope to be in a position to give a better indication. We are in ongoing discussions with the HSE on the timescale.
I remind the committee of what the Taoiseach said when he launched the Bill. He said putting in place the full set of measures set out in the Bill would take time but that it was the Government's priority to enact the Bill as promised in the programme for Government. When I took over this job, the Taoiseach reiterated that he wanted to see not only the Bill being passed but its implementation. There will be no question of a long period elapsing or of the Bill being put on a shelf, as Deputy Stanton suggested. The intention is to move forward as quickly as possible with its implementation. I will try to be more forthcoming in terms of the timescales involved as Committee Stage proceeds.
As Deputy Stanton said, amendments Nos. 4, 5 and 6 are technical and relate to drafting style. Subsections (2) and (3), with or without the proposed amendments, adequately express the purpose behind them. The amendments would not necessarily improve their provisions and are not in keeping with the drafting style of the Bill. Accordingly, it is not necessary to accept them.
Like everyone else, our focus is on the Bill. My worry is that once it is passed — I am sure it will be a great relief to the Minister of State when it is — we will be into the summer recess and not return until September. Once one's attention is diverted to a different issue, there will be no urgency about other issues. That is what has happened with disability issues over the years. My worry is that the foot will be off the peddle and there will be no urgency about this issue. The Minister of State and the Taoiseach will be able to say they promised the Disability Bill in the programme for Government, although what was proposed was a rights based Disability Bill, and that they have delivered. No one will be able to dispute this.
The difficulty I have with this section is that there will be no urgency and that there will be no one to drive the issue because the Minister of State and the Taoiseach will have moved on to another issue. I do not understand why the section has been included. If the sector does not have the capacity, it will not be able to deliver. I see no other reason for the inclusion of the section other than as a delaying tactic.
The Minister of State has said he intends to ensure all the provisions of the Bill are implemented. The way he said it reminded me of the Good Friday Agreement, whereby many of the parties to the deal were united but years later we are still waiting for it to be implemented in full. That concerns me. I know people are full of good intentions, particularly the responsible Ministers, but if we do not accept people with a disability have rights as citizens of the State and do not respect those rights, all the goodwill and good intentions will come to nothing. It is like the Minister for Finance's budget for this year; there are many good intentions about rolling out day care and respite care services but we are still waiting for them. I know about many of the services involved because I know many families who use them. As the parent of a child with a disability, I see the problems in rolling out services. That is why I feel strongly about the issue. The implementation of the legislation is crucial. However, if we implement legislation without rights, it will be very difficult to provide services.
I was glad when the Minister of State said it was the Government's intention to implement the Bill as soon as possible and that he would give us more information before Committee Stage was completed. We look forward to receiving that crucial information. It is important that we are given firm timescales and dates for implementation of various aspects of the Bill.
I bring my amendment to the attention of the Minister of State. I am amazed he jumped in so quickly, possibly without even thinking. Not so long ago we tabled an identical amendment to the Containment of Nuclear Weapons Bill which was accepted without hesitation by the Minister of State's colleague, Deputy Gallagher. I cannot understand why the Minister of State was quick to jump in, especially since the Law Reform Commission recommended this type of draft. Perhaps he needs to look at the matter again.
The intention is to make the Bill more readable for the public. A number of years ago the Taoiseach spoke about the importance of legislation being easily accessible to the public. Perhaps the Minister of State will return to this issue on Report Stage, having consulted his colleagues, and will not be so hasty to jump in to reject it.
I would never accept the assertion that I jump in quickly. I am prepared to consider the issues raised. My officials have looked carefully at all the amendments tabled. I have been a Member of the House for 23 years and worked in six Departments. I have never seen officials do as much work. They worked in the Department up to 8 a.m. last Saturday. In my time in politics I have never seen commitment like it. We will refer to it again when the Bill is completed but it is important to realise the amount of work done by the officials. It is nothing short of amazing.
The officials in the Bills Office stayed after 8 a.m. on Saturday to process the amendments. They should also be commended.
We very much appreciate the work done by all the officials, which was over and above the call of duty. It is not a question of jumping in or of not considering everything carefully. If the Deputy wants to give us the reference on the active voice issue, we will follow it up with the Office of the Parliamentary Counsel to see if there is an issue and give it full consideration.
There is no doubting the commitment of Deputy Finian McGrath, who has a daughter with a disability, and Deputy Lynch. I hope some day they will have the opportunity to serve in Government and endure the rigours of dealing with the public service and bringing forward legislation, regulations and so on.
I hope the Minister of State gets his wish.
There are practical issues which must be taken into account. While we would all like to see this legislation passed and implemented the following day, that is simply not possible from a practical point of view. There will be an amount of work to be done in the context of the regulations to be prepared. We have had a number of meetings and invested much time, with the Department of Health and Children and the Health Service Executive, in trying to get the regulations right. It is critical that we get over the difficulty Deputies have rightly pointed out to ensure it will not become a bureaucratic nightmare and that there will not be considerable delays in assessments, the preparation of service statements and so on. Deputies will be pleasantly surprised by the set of regulations the Health Service Executive will come up with but that will take time. I intend to ensure the minimum amount of time will elapse before we start implementation of the Bill.
It is not a question of passing the legislation and feeling good about it. The legislation forms only one part of the Government's disability strategy. Consequently, when it is passed, my priority, as emphasised by the Taoiseach, will be to proceed with its implementation effectively and efficiently in order that we can provide the services required by people with a disability. I will try to be more forthcoming as we proceed. However, the Bill will not be put on the shelf. The intention is to have it implemented as quickly as is humanly possible.
Amendment put and declared lost.
I move amendment No. 4:
In page 5, subsection (2), line 31, to delete "shall".
As the Minister of State said he would look at this amendment again, I withdraw it on that basis.
Amendment, by leave, withdrawn.
Amendments Nos. 5 and 6 not moved.
Section 1 agreed to.
Amendments Nos. 7 and 8 are out of order.
Why is amendment No. 8 out of order?
It is out of order on the basis that it involves a potential charge on the Revenue outside what is contemplated by the Bill. It is standard procedure that such amendments cannot be moved.
Can we still speak to it?
No. It cannot be moved because it is out of order. It is not within our remit to move an amendment which would give rise to a charge on the Revenue beyond that contemplated by the Bill.
I understand I can speak to the section but this is a fundamental issue. There are only about three issues which are fundamental to the design of the Bill and this is one of them.
Amendments Nos. 7 and 8 not moved.
Amendment No. 9 has also been ruled out of order.
Amendment No. 9 not moved.
Amendment No. 10 is related to amendments Nos. 11, 16, 38, 39, 47, 51 to 53, inclusive, 55, 59, 61, 66, 85, 88, 91, 96, 99, 101, 104, 110, 124 to 126, inclusive, 132, 140, 147, 153, 155, 159, 161, 165, 171, 172, 176, 178, 192, 200, 202, 204, 206, 213, 216, 223, 226 and 279. Amendment No. 89 is an alternative to amendment No. 88, while amendments Nos. 171 to 173, inclusive, are alternatives to amendment No. 170. Is it agreed that all these amendments may be discussed together? Agreed.
I move amendment No. 10:
In page 6, subsection (1), between lines 14 and 15, to insert the following:
"‘Executive' means the Health Service Executive;".
The Government amendments relating to the Health Service Executive are technical in nature. A small number of substantive Government amendments are also included. The Health Service Executive Government amendments, 45 in all, seek to introduce the HSE to the framework of the Disability Bill and replace the health board structure in place at the time of publication of the Bill last September. Section 58 of the Health Act 2004 specified that the health boards would be dissolved on the establishment day of the HSE.
The HSE related amendments fall into four broad categories — those which deal with the statutory basis for the HSE, those which replace references to health boards or the chief executive officer of a health board with a reference to the executive, those which replace references to officers of health boards with a reference to employees of the executive, and those which delete references to a functional area of a health board as the place of residence in the State of an applicant as no longer relevant in view of the nationwide ambit of the HSE.
I draw Deputies' attention to Government amendments Nos. 55, 101 and 153, as well as amendments Nos. 66 and 124, which, in addition to incorporating related HSE amendments, also contain unrelated substantive Government amendments sought in submissions on the Bill. Amendments Nos. 55, 101 and 153 place a positive obligation on the Health Service Executive to appoint assessment officers in section 7(1), liaison officers in section 10(1) and complaints officers in section 14(1). The amendments replace the permissive provisions in the text of the Bill, as published, and arise primarily from suggestions made by the National Disability Authority which I am happy to support.
Section 8(2) provides for persons to act on behalf of an applicant. Amendment No. 66 will make it clear that where someone applies for an assessment on behalf of another, that person should also be entitled to a copy of the assessment. This clarification addresses a concern brought to my attention by the disability legislation consultation group and I am happy to bring forward the amendment.
In regard to amendment No. 124, there is a stipulation that a service statement must be prepared without undue delay. This detailed procedural point was highlighted by the National Disability Authority and I am pleased to bring forward the related amendment.
In regard to section 10(6), Deputies will be aware that the text of the Bill, as published, had not been amended to deal with the new statutory position since the HSE was established. The reason is that there are some legal and technical issues which have yet to be resolved. I hope to be in a position to bring forward the relevant amendments on Report Stage.
In regard to the Opposition amendments, amendment No. 89 in the name of Deputy Lynch seeks to compel employees of the HSE to apply for an assessment of a person who appears to have a disability. Section 8(4), as drafted, allows officers of the HSE to seek an assessment on behalf of a person. This provision will cover a small number of cases where a person does not have a relative or guardian to act for them and is not able to do so alone. It is appropriate that the HSE is given discretion to consider the individual circumstances of each case.
Amendment No. 170 relates to the content of a report from a complaints officer. The amendment would allow for an assessment to be declared inadequate. However, the intended meaning of "inadequate" in the context of the Bill is not clear. The text of the Bill, as published, ensures the adequacy of assessments is safeguarded by section 9, which allows for implementation of standards and by existing grounds for complaint in relation to non-conformity with such standards. This is a more suitable way to ensure assessments are adequate, given the broad range of considerations which go to make up a good assessment.
Amendment No. 173 would specify a timeframe for carrying out a further assessment following a successful complaint. The amendment is unnecessary, as the timeframes for assessments are set out in section 8(5). I do not propose to accept amendments Nos. 89, 170 or 173.
Most of the amendments are technical.
I refer to the powers given to the Health Service Executive to appoint staff. The Minister of State mentioned assessment, liaison and complaints officers. Will the status of complaints officers stand? I discussed this matter earlier with the Chairman. Will there be a change in regard to the Ombudsman? If so, why is there still a need for a complaints officer?
We made an offer to the disability legislation consultation group. To comply with its requirement for greater independence, we have offered to replace the appeals officer with an appeal to the Office of the Ombudsman. It is for the group to decide whether it wants this as an alternative. The status of the complaints officer will not change but there is provision to remove the chief executive officer of the health board from the complaints procedure to make it less complicated. That represents a considerable improvement in terms of the complexity of the appeals mechanism.
Perhaps I will be treading on someone's toes in saying this but we are dealing with the legislation. Why are we waiting for an outside body, even if it is the disability legislation consultation group, to accept or reject it? Is the Minister of State proposing this as an amendment to the Bill? I hope I am making myself clear. The group may state it is agreeable to this at the end of the week. As I have tabled an amendment, I am anxious about the matter. It is something for which the Labour Party has been looking from the outset. Is the Minister of State proposing this as an amendment to the select committee which is dealing with the legislation, or do we have to wait for an outside body to give him the nod? I have a difficulty with this.
No. The proposal was one of the responses of the disability legislation consultation group and eloquently elaborated on by the Deputy and others in the Dáil. It is in response to the case made. We have given the disability legislation consultation group and the select committee an option to consider, that is, whether the alternative of having the Ombudsman as the appeals officer would provide for more independence. If there is agreement, we will table the amendment on Report Stage. At this stage it is simply an option given in response to the case made by all sides that there should be greater independence in the appeals process from the Department of Health and Children.
That is why I make the point. The Labour Party suggested this on Second Stage. If it is an option, how will an appeal be made? Will one appeal in the same way one would appeal to the appeals officer? Will it be related to the process or what is contained in the statement?
It will be related to the process. The complainant, if not satisfied, will have the ability to appeal directly to the appeals officer as set out in the Bill or the Ombudsman if the change is made. The section which stated an appeal had to be made through the chief executive officer of the health board has been removed. To reduce that extra layer the Government has agreed to remove the chief executive officer from the complaints and appeals procedure.
That is completely unsatisfactory. The Labour Party tabled the amendment because the appeal to the appeals officer was unsatisfactory because it only related to the process. If someone has a complaint about how he or she has been treated or if he or she believes he or she was not listened to, it is of no consequence if one does not get the service one requires in the service plan. To offer the Ombudsman as a substitute in the same circumstances is of no benefit. The Ombudsman may comment and make more public statements than the appeals officer within the Health Service Executive but will still have no right or power to have the needs of the complainant included in the service plan or statement if the appeal is only related to the process. It would be akin to someone complaining to me at my advice centre. I would have no power to give them what they needed, although I could listen and tell them they were right.
Given the bureaucratic nature of the system being put in place, I am convinced the process will only be incorrect in an exceptional case where someone will be dealt with incorrectly. It will be so formulated that it will be almost impossible not to deal with someone in the manner set out in the regulations. To offer the Ombudsman as opposed to the appeals officer is futile and worthless.
The Deputy has tabled specific amendments on this issue which we will discuss in detail.
I needed to tease out this issue because the Minister of State referred to it.
Perhaps I will come back to it but I strongly support what Deputy Lynch said because there is no point having an appeals and complaints procedures if the person with a disability will not receive the service required.
In regard to amendment No. 124, I welcome the fact that the statement will be prepared without undue delay. That is very important, given the constant delays encountered by families waiting for services and statements.
On the health boards becoming the Health Service Executive, this radical change needs to result in greater effectiveness for families, particularly those waiting for residential, day care or respite places. There seem to be different stories from the HSE and managers within the service providers. I would welcome a less complicated system in order that families can receive the services they need.
When talking about appeals officers and complaints procedures, we should not get carried away. At times some of those involved in the debate get a little obsessed. We should not reach that stage. Services should be provided and funded. The majority of cases should be dealt with sensibly and with a little cop-on. The focus should be on the provision of services. That is the crucial issue which will emerge from the broader debate on the Bill.
Was it the intention that the amendment should be included with this batch because it refers to the Health Service Executive rather than the chief executive officer?
Amendment No. 124 seems to be out of character with the other amendments in this group.
There is no reason for it to be in this group.
That is fine. Does the Minister of State wish to make any further comments in response to the Deputies?
Most of the amendments relate to the establishment of the Health Service Executive and the abolition of the various health boards. Amendment No. 91 proposes to amend section 8(5) in order that it will read: "Where an application or a request under subsection (1) is made, the Executive shall cause an assessment of the applicant to be commenced within 3 months of the date of the receipt of the application or request and to be completed without undue delay”. This section refers to “the chief executive officer of the health board concerned”, rather than to “the Executive”. A chief executive officer is an identifiable individual, whereas the executive is a group or body.
The reference is to the Health Service Executive, as defined.
I am aware of that. The point I am making is that the Minister of State proposes to give the powers mentioned in section 8(5) to a group of people, rather than to an individual. A chief executive officer can be held individually accountable but the executive is a collective body. The chief executive officer in each region can be served with a court order, for example. I accept that the courts are not involved in this instance. As the Health Service Executive is an amorphous body, the reference to it is more vague. I wonder whether the Minister of State should ensure this section refers to the "chief executive officer of the executive" rather than to "the executive". I am not sure what difference, if any, would be made by such a subtle change but I would like the Minister of State to consider it.
That is the main point in all the amendments under consideration. The Deputy has made it well.
The Health Service Executive delegates responsibilities to the chief executive officers of its new regional areas. The legal advice we have received suggests that the word "executive" should be used. The HSE delegates responsibility.
Where does the buck stop? Under the previous health board structure, which is mirrored in the Bill, as it stands, the buck stopped with an individual — the chief executive officer of the health board.
The buck stops with the Health Service Executive, which will delegate powers to the CEOs of the various regions. There are three regions, compared to eight under the previous structure.
Are they called CEOs now?
Yes. There are CEOs in the three new HSE regions.
They are the people who——
The buck will stop with the executive.
The executive's accounting officer is also its chief executive officer.
If anything happens in any of the regions, the executive will be accountable to the Minister and the Dáil.
As the new structure is different from the old health board structure, it is necessary to use the term "executive" in the Bill in this way.
I am concerned that although an individual person was seen to be responsible in the past, the amended form of the Bill will mean that "the executive", which is a body rather than a person, will be responsible. This amendment will make a difference. I do not want to use the awful word "court" again because the Minister of State comes out in spots whenever anyone mentions it.
I am aware of a recent case in which a county manager was held responsible for something the county council did not do. A judge threatened him with imprisonment if he did not cause something to occur. In this instance, the Bill gives responsibility to "the executive", which is a body rather than a person. It is a moot point. We need to tease out the implications of this change to ascertain the implications of giving responsibility to a body instead of a person.
Questions of subsidiarity, accountability and responsibility need to be considered in this context.
We should also think about the issue of movement.
We need to reflect on the distance away from——
That the HSE has its own Vote, which will be specifically granted by the Minister for Finance, is an important and significant aspect of this matter. Most consider the new arrangements to be a great improvement because they ensure the executive is responsible and answerable. I will outline some of the details of its work on the ground. The executive delegates responsibility for the day-to-day running of health services to the CEOs.
This legislation will impose a further charge on the State. The Minister of State has said the executive will have its own Vote. Does this mean that the funding required under the Bill will be specifically ring-fenced in order that people with disabilities will not be left without funding? A great deal of the executive's money will have to be spent on its other responsibilities, such as the running of hospitals and the promotion of public health.
We will consider this issue at a later stage. Extensive provision is made in the Bill in respect of this matter, which we will discuss later in the debate. Nothing will be ring-fenced.
Is there a specific ring-fenced fund for disabilities?
No. There is a specific provision which we can debate in a while.
The Minister of State raised the issue of answerability. To whom is the executive answerable in its management of the provisions of the Bill?
It is answerable to the Oireachtas and the Government.
Will it be possible, under this legislation, for the Joint Committee on Health and Children to invite the accounting officer of the HSE to address it about matters within the scope of the Bill? I understand from the clerk to the committee that under Standing Orders, the committee will be entitled to ask him or her to speak. It is a moot point.
Amendment agreed to.
I move amendment No. 11:
In page 6, subsection (1), to delete lines 22 and 23.
Amendment agreed to.
I move amendment No. 12:
In page 6, subsection (1), line 25, to delete "2003" and substitute "2004".
I do not know why this technical amendment has been ruled out of order. Perhaps the Minister of State will explain why the proposed amendment to this section has been ruled out. It merely recognises the 2004 Act. Perhaps the Bill does not apply to local government.
It was not ruled out of order.
Is it in order? I could not find it on the list.
I can see the amendment which proposes to delete "2003" and substitute "2004" on the list.
Yes. It is not on the list of amendments to be discussed with amendment No. 10.
No. It is a separate amendment. It is being discussed on its own because it is of such importance.
My amendment, which is very technical, recognises the 2004 local government Act. I do not think it would have any financial implications. Perhaps the Minister of State is not inclined to accept it.
The amendment attempts to correct the citation for the Local Government Acts. I am grateful to the Deputy for raising the matter. She may be correct. If an amendment is necessary, I will deal with the issue on Report Stage.
I thank the Minister of State. Similar proposals are made in amendments Nos. 17 and 18.
We will come to them at a later stage. We need to consider the amendments in order.
Amendment, by leave, withdrawn.
As amendments Nos. 14 and 15 are alternatives to amendment No. 13, amendments Nos. 13 to 15, inclusive, may be discussed together.
I move amendment No. 13:
In page 6, subsection (1), lines 28 to 31, to delete all words from and including "does" in line 28 down to and including "only" in line 31 and substitute the following:
"includes all transport infrastructure or transport service as prescribed in section 2(b)(iv) of the Equal Status Act 2000 and includes any vehicle or equipment as referenced in sections 17(1) and 18(1) and (2) of the Equal Status Act 2000, but does not include an air service within the meaning of the Air Transport and Navigation Act 1965".
This amendment proposes to insert a new definition of "passenger transport service" in section 2(1) of the Bill. I understand that, under the current definition, some people who are classified as being disabled will not be permitted to use "a railway infrastructure or train service operated for historical or touristic reasons only". Having received a submission in this regard from the Institute for Design and Disability, I propose that this section of the definition be deleted because it is not in line with the provisions of the Equal Status Act 2000. I will be interested to hear the thoughts of the Minister of State who has proposed an amendment to this section in amendment No. 14.
Train services of historical or touristic interest are excluded from the definition of "passenger transport service" in section 2(1) of the Bill. Amendment No. 14 attempts to alleviate the concern expressed by Deputies, representatives of the National Disability Authority and others that the use of the term "touristic" is unduly wide and could encompass access to some mainstream train services. Having considered the matter, I propose to change the definition of "passenger transport service" to make it clear that the exclusion applies only to services operated by people other than mainstream operators, such as steam railway enthusiasts. Such operators usually use trains of historical interest and operate on tracks which are not part of Iarnród Éireann's infrastructure.
The amendment I have proposed which draws on a definition in the Railway Safety Bill 2001 is similar in approach to that proposed by Deputy Finian McGrath in amendment No. 15. The change I have proposed will bring clarity to this matter and reassure disability organisations.
Amendment No. 13 proposes that the definitions used in the Equal Status Act 2000 should be the basis of the definitions used in this Bill. Such an approach is unnecessary because the normal range of transport services available to the public is covered by the definition in section 2(1) of the Bill.
Is the Minister of State prepared to accept the proposed change of definition in amendment No. 15?
Amendments Nos. 14 and 15 amount to the same thing. I will move amendment No. 14 to cover the provisions of amendment No. 15 in the name of the Deputy.
Amendment No. 15 will not be moved if amendment No. 14 is agreed.
Amendment, by leave, withdrawn.
I move amendment No. 14:
In page 6, subsection (1), lines 29 to 31, to delete all words from and including "a" in line 29 down to and including "only" in line 31 and substitute the following:
"a service provided by a person who only operates train service or railway infrastructure of historic or touristic interest".
Amendment agreed to.
Amendment No. 15 not moved.
I move amendment No. 16:
In page 6, subsection (1)(g), line 39, to delete “a health board” and substitute “the Executive”.
Amendment agreed to.
As amendments Nos. 17, 18, 280 and 281 are cognate and amendment No. 276 is related, the amendments may be discussed together.
I move amendment No. 17:
In page 7, subsection (1)(h)(i), line 2, to delete “2001” and substitute “2003”.
The amendments are exactly the same. They relate to the Companies Acts.
As the Minister of State has said he will examine the matter before Report Stage, will the Deputy withdraw the amendments?
I can accept amendments Nos. 17, 18, 280 and 281. The collective citation for the Companies Acts has been amended. It now reads "the Companies Acts 1963 to 2003".
Perhaps I should withdraw the amendments in order that the Minister of State can clarify the matter on Report Stage.
I will accept amendments Nos. 17, 18, 280 and 281 at this point.
I do not intend to accept amendment No. 276, because it refers to the Health Insurance Acts. I propose to make any necessary amendment in that regard on Report Stage.
Amendment agreed to.
I move amendment No. 18:
In page 7, subsection (1)(h)(ii), line 3, to delete “2001” and substitute “2003”.
Amendment agreed to.
As amendments Nos. 20, 21 and 23 are related to amendment No. 19 and amendments Nos. 24 and 25 are alternatives to amendment No. 23, the amendments may be discussed together.
I move amendment No. 19:
In page 7, subsection (1), between lines 9 and 10, to insert the following:
"(i) any body, organisation or group financed wholly or partly by a Minister of the Government and standing prescribed by the Minister;”.
This amendment proposes that the public bodies to which this Bill applies should include "any body, organisation or group financed wholly or partly by a Minister of the Government and standing prescribed by the Minister".
The provision of access to specialist and mainstream public services is the focus of the Disability Bill 2004. The acceptance of the amendments in this grouping would widen the scope of the Bill considerably. Amendments Nos. 19, 21, 24 and 25 would extend its scope to include private and voluntary bodies which provide services on behalf of the State or are publicly funded. Amendments Nos. 20 and 23 would broaden its scope even further to include the entire private sector.
The Bill is a positive action measure geared to support the participation in society of persons with disabilities. It places significant positive obligations on public service providers in this regard. The extension of such obligations to voluntary and private bodies could be viewed as an unreasonable encroachment of bureaucracy into service organisations, particularly those run on a commercial basis. Such organisations are already obliged to comply with relatively recent employment equality and equal status legislation.
I will outline the obligations which the amendments would place on voluntary and private bodies. Part 3 of the Bill requires that services provided by public bodies be made accessible and ultimately subject to complaint to the Ombudsman. Cinemas and shops, for example, would have to retro-fit their premises over a ten-year period. Sports centres would have to present all their literature in accessible forms, irrespective of cost. Organisations such as the National Women's Council, which receives State support, would have to ensure their services were accessible to people with disabilities.
Part 5 of the Bill establishes a statutory basis for the Government's target of ensuring not less than 3% of the employees of public bodies are persons with disabilities. If the amendments before the House were accepted, the target would apply to employees in all sectors of the economy. Should a target percentage of employment of people with disabilities apply to those employed in conducting national car tests, for example? Should similar provisions extend to contractors in publicly funded roads or construction projects? I am not convinced that the proposed amendments would help us, in practical terms, to achieve the Bill's goals. It is better to maintain an approach based on mainstream public bodies which we all use, as such bodies have a public duty to accommodate all citizens. I do not think it would be in our best interests to accept the amendments.
Some questions arise in this regard. Amendment No. 21 proposes to alter the Bill's definition of a "public body" in order that it includes "any body which is publicly appointed, which is funded by public money or which carries out public functions designated by law". The definition of a "public body" in the Bill, as it stands, excludes some bodies which are partly or wholly funded from public moneys and have a mandate to perform a public function. The definition is likely to grow in importance in the context of the future delivery of public services and governance and the future ownership of various public bodies. It is important to note that, as the Bill is drafted, some State-sponsored bodies, voluntary organisations and disability service providers may not be covered by it. I would like to know the Minister of State's view on this. Does he agree with it?
This matter was brought to my attention by the ICTU, following a great deal of examination of the legislation. It has recommended that the definition of a "public body" should be broadened to include any body which is publicly appointed, funded by public money or conducts public functions designated by law. This important part of the matter needs to be clarified.
If we do not deal with this matter properly by ensuring all sectors of society are forced to comply with the provisions of the legislation, the proportion of employees with disabilities will not increase above the current 3% level. The Bill represents an attempt to bring people with disabilities into the mainstream, although the question of whether it will achieve this is another day's work.
Most people do not access public offices by choice on a daily basis. I do not refer to those of us in this room. Most people in a normally functioning society spend their time going to shops, cinemas, churches and banks. The Labour Party is not expressly saying such places should be included or excluded in the Bill. Its amendment suggests that the Minister of State should include in the Bill provisions which will facilitate the Government if it has to widen the circle at a later stage. We should consider the matter in that context. If any of the well paid team management consultants were present at this meeting, they would speak about a blue skies policy. They would ask us to think about what could be provided if no restrictions were in place.
I do not think the suggestion we are making would constitute a huge financial imposition, particularly if it were encompassed in planning legislation. Under the US Americans with Disabilities Act, everything has to be accessible. One has to make one's premises accessible, for example, by putting in place a steel ramp. It does not cost the earth. We should not exclude anything in the manner that the Bill, as currently worded, does.
I would like to speak about amendment No. 19. We need to think outside the box when dealing with issues of accessibility, services and rights. Provision needs to be made for people with disabilities in shops and cinemas. It is clear from the current version of the Bill that the minds of the Minister and his colleagues are too closed. We need to open our minds and think outside the box when providing services. We should not always consider the provision of services for people with disabilities as a problem.
I can give plenty of examples of good practice in this State in the absence of disability legislation. Workers in many companies and factories have developed projects and adapted workplaces such as shops. During the five years I was a member of Dublin City Council the 3% quota for the public employment of people with disabilities was achieved within two years. When I was leaving the council, the relevant percentage was above 4.3%. The council succeeded in meeting the target on its own by pursuing inclusive policies. It was mentioned in the Dáil last week that the relevant percentage in the Department of the Taoiseach was 3.8%. We need to think radically, progressively and creatively when trying to help people with disabilities.
The Minister of State argued that it might not be reasonable to require that 3% of those working on the national car testing process should be people with disabilities. One can create many jobs and provide many services within the car testing system. All jobs can be created and services provided in a way that facilitates persons with disabilities. I do not accept the Minister of State's argument.
The Minister of State has mentioned that the Bill is not the only mechanism being used to provide services for people with disabilities. I accept that it is part of an overall disability strategy but we need to implement other strategies if we are to make progress in this regard. We can assist people with disabilities by ensuring the Bill is as strong as possible and acts as a back-up to the other strategies being enacted.
The Oireachtas recently passed the Official Languages Act 2003, which applies to all public bodies. Why is the Government taking a different approach in this instance? The Schedule to the 2003 Act contains a long list of the bodies to which the Act applies. I cannot understand why this——
Is the Deputy speaking about the amendments before the select committee?
Yes. I do not understand why the public bodies to which this legislation will apply are not listed, as they are included in the Act I have mentioned. The 2003 Act mentions many public bodies, such as the Department of Agriculture and Food and the Central Statistics Office. Why has a similar approach not been adopted in this instance? Perhaps the select committee has already discussed the matter.
It has not reached it. I understand no amendments have been tabled to the relevant part of the Schedule.
This aspect of the matter needs to be highlighted. Given that we are trying to decide what a "public body" means, I do not understand why we cannot include in the Bill a long list of such bodies as we did in other legislation.
I would like to discuss the amendments before the select committee. The Bill should be amended in line with the human rights equivalence commitments in strand 3 of the Good Friday Agreement to introduce a statutory duty for positive action equivalent to section 75 of the 1998 Northern Ireland Act. In that context, the definition of what constitutes a "public body" needs to be expanded significantly to be consistent not only with the broad definitions under section 75 but also with the broad definitions in other legislation in this jurisdiction such as the Freedom of Information Acts and the Official Languages Act. Private companies operating with public funding and providing public services should not be exempt from the terms of the Bill.
The definition of "services" should be amended to reflect the definition in the Equal Status Act and section 75 of the Northern Ireland Act I have mentioned. The definition of "service" should be revised in order that it relates to "a facility of any nature that is available to the public generally, or to a section of the public". I suggest that the Minister of State examine this matter in advance of Report Stage.
It is important to remember what we are trying to achieve in the Bill. We are placing a major obligation on public bodies to mainstream services. It is not correct to compare the sole US anti-discrimination Act with the Bill, because two anti-discrimination Acts are in place here. I refer to the equal status and employment equality legislation. The US Act is a similar form of anti-discrimination legislation to the two Acts in question. The legislation in the United States does not force bodies there to provide services that have an inordinate cost, whereas our provision provides public bodies with such an obligation, and there will be a significant cost in providing the services that are required here. It is for that reason that it will be impossible to put that burden on voluntary bodies or other private sector organisations, even State-sponsored bodies, as was suggested by Deputy Stanton.
Under our existing legislation there is an onus on all bodies to provide for equality as far as possible. Public bodies must bear that obligation and the significant costs of mainstreaming. An important first step is being taken. Deputy Lynch suggested that it might be possible to extend the provisions to other bodies in future. Our view is that, at present, the formula is well placed to provide for better services for people with disabilities.
This is a tricky matter, which we must get right. Will the Minister tell us what is meant by "a person, body or organisation established by or under any enactment (other than the Companies Acts 1963 to 2001)"? That is from the definition of "public body" under section 2(1)(h). Two groups are mentioned in paragraphs (h)(i) and (h)(ii). What “person, body or organisation” does the Minister have in mind? The second group, covered by paragraph (h)(ii), comes “under the Companies Acts 1963 to 2001, in pursuance of powers conferred by or under another enactment, and financed wholly or partly, whether directly or indirectly, by means of moneys provided, or loans made or guaranteed, by a Minister of the Government or shares held by or on behalf of a Minister of the Government”. Will the Minister give us examples of what that covers? That would clarify what we are talking about when we discuss a “public body”. The amendments are about defining public bodies.
Many bodies are established under statute, including the National Disability Authority, Comhairle and the Health Information and Quality Authority. There is a whole plethora of them. We can give members the full list.
Is Iarnród Éireann or Bus Éireann included in that?
No, they are semi-State organisations.
No, but we will get further clarification on that.
It is an important issue. Many bodies provide services for people with disabilities. In the main, disability service providers are hugely financed by public, State money, yet they are not defined in the Bill as being public bodies. We do not know what organisations are covered by paragraphs (h)(i) and (h)(ii).
I will get a list of the companies, or at least the types of companies concerned.
The Bill states that "‘public body' means a Department of State". Does that cover all the organisations established under the aegis of that Department?
It just means the Department itself. "Public body" therefore excludes a lot of organisations.
They are covered under paragraph (h)(i).
Would it be possible to suspend the sitting so that the Minister can obtain those details for us?
I do not know whether the Minister is in a position to get those immediately.
I would not be able to get them immediately.
I suggest that we suspend until 12 o'clock in any case so that members can refresh themselves. We will return at 12 o'clock and continue until 1.30 p.m., when we will break for lunch. Is that agreed?
Will the Chairman clarify which amendment we are dealing with?
We are dealing with amendment No.19, with——
I will not be able to get that information to the committee.
I will not be able to get it until after lunch.
In any event, we need to have a quick break.
Sitting suspended at 11.45 p.m. and resumed at 12 p.m.
Is Deputy McGrath pressing his amendment?
Does Deputy McGrath have a right to table a similar amendment on Report Stage?
Absolutely. Similar amendments may be tabled on Report Stage, as long as they are included in the list of amendments.
Amendment, by leave, withdrawn.
I move amendment No. 20:
In page 7, subsection (1), between lines 9 and 10, to insert the following:
"(i) any private body which provides services and products to the public;”.
We are still awaiting clarification regarding this section and what it means. Are State-sponsored bodies, voluntary bodies and disability service providers included in the provisions?
The accessibility of public and private services is a very important issue. This section defines a service as "...a service or facility of any kind provided by a public body which is available to or accessible by the public generally or a section of the public and, without prejudice to the generality of the foregoing..." However, if we do not get the definition of a public body correct, then that which follows will also be out of synch. We need to know what the Minister means by the term "public bodies". Surprisingly, there is no Schedule to the Bill outlining the organisations, bodies or persons established under the enactments. It would help to have a list.
According to the Irish Wheelchair Association, the legislation adopts a very narrow reference for what constitutes a public body and does not include the private sector. It maintains that all bodies, public or private, which provide services and products for the public should be required to provide equal access to people with disabilities, save in the event of its being a disproportionate burden on the operation of their business. As the Chairman knows, it arises from a constitutional issue based on a 1997 Supreme Court ruling on the equality legislation. The National Federation of Voluntary Bodies maintains that public services should include all public services provided in the public system by statutory or non-statutory entities. It is not clear which are included and which are not. It would be if they were outlined in a Schedule to the Bill, but they are not.
In addition, the disability legislation consultation group stated that the accessibility of public and private services provided for the public needs to be guaranteed in the legislation with the broadest possible definition so that it includes the right to physical, information and communications accessibility and to genuine reasonable accommodation. It states this must be given the highest priority and be set within reasonable timeframes. All bodies, public and private, that come into contact with the public should be covered. I take the Minister's point that one can impinge on the operation of a body, but a constitutional Supreme Court ruling exists on this issue which limits it anyway. There is also the question of whether a constitutional amendment is required to deal with this issue. There is currently a debate on that question, which is a separate issue.
However, this committee does not know what it is passing because it does not have a detailed understanding of what these terms mean. This is crucially important. It now appears that a Department of State is covered but, as the Minister stated, bodies under the aegis of a Department may not be covered. Increasingly, more responsibility is being given by Departments to public bodies such as the Railway Procurement Agency or the National Roads Authority. The committee does not know what the legislation proposes at this point. We lack clarity and the Minister does not appear to have the information either. It is unfair to ask us to proceed with this legislation until we know exactly what we are dealing with. Can the Chairman tell the committee what we are dealing with here? What bodies are involved.? The committee does not know. How can it agree to this legislation if it does not know?
As an amendment was not put down regarding these matters, it would be unfair to expect the details to be immediately at hand. However, it would be helpful if the officials could give a full briefing to the Deputy so that he can go into this matter in further detail on Report Stage, if he so desires and as a number of organisations have requested.
I will clarify section 2(1) (h)(i) and (ii) as best I can. Any body established “by or under any enactment” includes all the bodies that have been set up. I have a list here from the Official Languages Act, the only one I have to hand, which includes most of the bodies involved, such as IDA Ireland and the National Disability Authority. All bodies set up under an enactment are covered under this legislation. The bodies set up under the Companies Act are the semi-State bodies such as Iarnród Éireann, Bus Éireann, Aer Lingus and Aer Rianta. The vast majority of the semi-State bodies are covered in 2(1)(h)(i), while the more commercially orientated ones set up under the Companies Act are covered by 2(1)(h)(ii). They have the same obligations as the Departments of State. I will try to get a list. Deputy Crowe has kindly given me the list included in the Official Languages Act, which is similar, but not exactly the same. This list is wider. I do not have a comprehensive list but will try to get one for the Deputy.
On Deputy Crowe's point about the Official Languages Act, which includes all those bodies, a sensible, common sense decision was taken. If an organisation receives a request for the provision of information in braille for instance, the organisation will then respond to it, whereas in the Official Languages Act, there is an onus on the organisation to provide the information. We do not think this is the best arrangement and we are not alone in that view. One could tie up unnecessarily a massive amount of resources. In this case, there is an acceptance and desire to provide information where it is necessary, on a common sense basis, rather than stating in legislation that it must be provided, irrespective of whether it is wanted.
Is the committee still discussing amendment No. 20?
Yes. I thought it had resolved it, but a few questions have arisen.
May I make my point about amendment No. 23? Although the amendment looks similar, it is not. The Labour Party only asks that the Minister does not restrict that section of the Bill as far as the question of who would provide access is concerned and that the Minister allows himself the freedom in the future to name other areas. I refer to amendment No. 23 on page seven. It allows the Minister the freedom to define other areas in the future while not taking away any of the rights the Minister is attempting to establish in the Bill.
Are there any other comments before the Minister replies?
Shall the committee then deal with section 2 in its entirety?
That is up to the committee. It is also discussing amendment No. 25. Has Deputy Stanton addressed it?
I am more confused than ever now. The Minister stated previously that Iarnród Éireann and CIE were not included in the definition.
I corrected that mistake. They are included.
The Broadcasting Commission of Ireland ought to be included, as should the Central Statistics Office, the Courts Service, the Legal Aid Board and the National Disability Authority, as the Minister noted. What about the Garda Síochána and prisons? Are prisons included as public bodies?
There is a list there that goes through——
I gave it as an indicative list. It is not a complete list.
Yes, but an indicative list——
Let us deal with the amendment. I will get the definitive list.
Is it possible or useful for the Minister to introduce a Schedule to the Bill to include these bodies so that everyone who read the Bill would know which bodies were included? Currently, an ordinary person reading the Bill would find it difficult to establish which companies are included and which are not. If the Minister included a Schedule in the Bill on Report Stage, it would be easy for outside groups or bodies to ascertain which bodies are included, without having to go through a rigmarole. When the Minister cannot tell the committee what is and what is not included, how can an ordinary citizen do so? That is the purpose of the legislation anyway.
I will get a list. I will not be able to provide a Schedule but I will get a list. This is a normal procedure in most legislation. There is no——
The Minister will provide as comprehensive a list as possible.
Amendment, by leave, withdrawn.
I move amendment No. 21:
In page 7, subsection (1), between lines 9 and 10, to insert the following:
"(i) any body which is publicly appointed, which is funded by public money or which carries out public functions designated by law;”.
Amendment put and declared lost.
Amendment No. 22 not moved.
I move amendment No. 23:
In page 7, subsection (1), lines 10 and 11, to delete "provided by a public body".
Does the Minister have any comment to make?
Nothing other than what I have stated.
The committee discussed this amendment earlier.
It removes the restriction and gives one the freedom to name other bodies in the future.
It does not remove the restriction. It merely leaves the situation much wider and more open, which is not acceptable.
This was the intention of the measure.
Amendment put and declared lost.
I move amendment No. 24:
In page 7, subsection (1), line 10, after "by" to insert "or on behalf of".
Amendment put and declared lost.
I move amendment No. 25:
In page 7, subsection (1), line 11, after "body" to insert ", or on behalf of a public body".
Amendment put and declared lost.
Amendment No. 26 is out of order.
Amendment No. 26 not moved.
Question proposed: "That section 2, as amended, stand part of the Bill."
Section 2 contained a Labour party amendment concerning the definition of disability, which was ruled out of order. The definition of disability appears to be unduly restrictive. The definition is built around a medical model of disability and we have further definitions of disability. I suppose that the definition that is most widely quoted is the one in the Equal Status Act, which is an all-encompassing definition. The other definition of disability concerns people with special educational needs.
Our amendment aimed to move the definition away from these two definitions in the Special Educational Needs Act 2004. The Act contained the word "enduring" and we wished to remove that. We wished to remove lines 10 to 14, inclusive, and substitute "‘disability' in relation to a person means a restriction in the capacity of the person to participate in society, including by carrying on a profession, business, or occupation in the State or by participating in social or cultural life in the State, on account of a physical, sensory, mental health or learning disability, or any other condition".
By any stretch of the imagination, that definition would be acceptable to most people involved in the area of disability. I still feel that the Minister of State should re-examine the definition of disability in the Bill because it is restrictive, regressive and based on the medical model. This section is probably the most tightly controlled of all the sections, apart from the financial sections. This section is the mostly tightly grounded and tied down section with regard to access and freedom of movement and essentially does no more than it has to. I understand the considerable amount of work that has gone into the Bill. However, it does not necessarily mean that those who worked on the Bill got it right. We appreciate the work done on our behalf by civil servants but it does not necessarily mean they get it right. This particular section needs to be considerably altered.
The Government decides on the heads of the Bill and the Civil Service responds to that. The Civil Service does not make decisions regarding the content of legislation.
One would have thought that this was the case, but I am not sure. Sometimes I think other bodies influence the Government.
There are a number of issues surrounding this section and I agree with the points raised by Deputy Lynch about it, particularly the point about the definition of disability. This definition has caused considerable concern. It is a substantial restriction and talks about an enduring physical, sensory, mental health or intellectual impairment. Will the Minister of State inform the committee what is meant by "impairment" because the Bill does not define what an impairment is? The Minister said on the radio this morning that something as simple as depression is not included in the Bill. If this is true, it is an extremely worrying development because more than 400 suicides take place in Ireland every year, most of them linked to depression and mental illness. The Minister says on the radio that depression is not included in the Bill, there are substantial restrictions in the legislation, disability is defined as an enduring physical, sensory, mental health or intellectual impairment and we do not know what "impairment" means because it is not defined in the Bill.
A Fine Gael amendment that was ruled out of order contained a definition of impairment. We used the definition which is recommended by organisations such as the DLCG, Headway Ireland, Enable Ireland, the National Parents and Sibling Alliance, the Irish Wheelchair Association, Mental Health Ireland, the National Council on Ageing and Older People, the National Federation of Voluntary Bodies, Brainwave, Aware, AHEAD, the Institute for Design and Disability and Children in Hospital Ireland. Almost all the groups that made presentations to this committee are dissatisfied with the definition of disability in the Bill. I asked the Minister of State in a parliamentary question whether any disability organisation was happy with it and he could not name one.
The definition of disability is a crucially important part of the Bill and if the current definition is approved, many people fear that it will exclude more than include. For example, a problem could arise from the words "business occupation in the State". What would happen if a disabled person who receives a service from the State had to leave it for a short period? Would that person be allowed to bring his or her State-provided personal assistant with him or her? It might not be the case, because the wording says that the person must reside in the State. Let us suppose a disabled individual working in the computer industry requires a personal assistant. He or she cannot bring that personal assistant with him or her on a business trip abroad. I moved another amendment to deal with this problem but it was ruled out of order. Perhaps the Minister of State might bring it forward or clarify whether someone will only get his or her rights under the Bill if he or she is engaged in business while living in the State.
We are in the EU and many people travel a great deal for business. If a person is involved in the information technology industry and uses a wheelchair that was supplied to him or her by the State as a service, does this mean he or she cannot bring it on a business trip abroad? I know it sounds ridiculous but when one examines how it is worded, it clearly says "in the State". I would have thought that perhaps a temporary absence from the State would be allowed. Would a disabled person be allowed to bring his or her personal assistant, for example? I am amazed that this is not covered in the Bill.
Impairment is not defined anywhere in the Bill. Perhaps it is defined somewhere in the Bill and the Minister of State can inform me where it is. Who will define it and how will it be defined? Will impairment mean the same as disability means in the Equal Status Act and the Employment Equality Act, which is "the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body, the presence in the body of organisms causing, or likely to cause, chronic disease or illness, the malfunction, malformation or disfigurement of a part of a person's body"? The Minister of State needs to inform the committee what he means by "impairment".
My views on the definition of disability would be similar to those of a number of speakers. The definition in the Bill is too narrow because it excludes some people and this is one of the fundamental flaws in the legislation. There is an onus on the Minister of State. All disability groups have expressed concern about this section and this Part of the Bill. The Minister of State and others say they are listening to the different groups but are they hearing them and considering their views? Listening to and consulting people is all very well but we must implement their views, in particular those of the disability sector. I will strongly support their agenda on this legislation.
This issue should be covered by the equality legislation. One may deal with the disability question but it is part of the broader debate about equality in society. We are still stuck in this box about equality and have not broken out of our mindset. I have an issue with people who have a problem about giving my daughter rights and many people with disabilities feel the same way. We all have rights because we are all citizens of the State and we must broaden the equality agenda. We must think outside the box. On a wider note, we have human rights commitments under the Good Friday Agreement and strand three in particular. Section 2 of this Bill is relevant to this part of the debate. We must ensure that people with disabilities have the right to participate fully in society. Every time we move forward, another little barrier is put in the way and this is unacceptable.
I agree with Deputy Stanton's comments concerning the services supplied by the State. This will create many problems, particularly for people in Border counties. In the Clones area, for example, one must pass through parts of Northern Ireland to get to these services. Simple matters such as this will cause difficulties, even if it is not the intention of the Bill. The matter should be examined.
I agree with other speakers about the amended definition of disability. It is accepted that this definition is one of the fundamental flaws in the Bill, as identified by the disability legislation consultation group. We also agree that, by using the term "substantial restriction in capacity" and by insisting that it must be enduring, this definition will exclude many people with disabilities, which is wrong. We also agree with the group that the definition to be adopted should be consistent with that under the equality legislation. Our suggestion would be to delete lines 10 to 14 on page 6 and amend the definition of "disability" so that it means:
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body;
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness;
(c) the malfunction, malformation, disfigurement of a part of a person’s body;
(d) a condition or malfunction which results in a person learning differently from a person without a condition or malfunction;
(e) a condition, illness or disease which affects a person’s thought processes, perceptions of reality, emotions or judgement or which results in disturbed behaviour;
and shall be taken to include a disability or impairment which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.
"People with disability" shall be taken to mean children or adults who experience any restriction in their capacity to participate in economic, social, political or cultural life on account of a physical, sensory, learning, mental health or emotional impairment. We believe this is a better description.
Deputy Lynch implied something about the civil servants that I wish her to clarify.
I was not talking about the Civil Service. Sometimes there are other influences at work. For example, employers will have much to say about this legislation.
There is absolute integrity. Does the Deputy refute this?
I needed to clarify the Deputy's comments.
Suggestions have been made about the broader definition, such as that in the equality legislation, and that it should apply to this Bill. Equality legislation is about non-discrimination whereas this legislation establishes specific positive action measures. Therefore, it is appropriate that such a definition should have a broad coverage encompassing a wide range of disabilities and levels of disabilities, from minor disabilities such as birth marks and short-sightedness to more serious conditions. The Bill is designed to enhance specific supports for persons with disabilities and improve their access to mainstream services through positive action measures. While the Bill builds on what has been achieved in equality legislation, its purpose is more focused. A broader definition could have the effect of diluting the benefits of such positive actions to the detriment of those in need of support and for whom the Bill is required.
I made the case to a number of individuals and groups that the broader one makes the Bill, the less impact it will have for the people concerned. I do not doubt that if we were to include people with depression in this legislation, half the country would apply for an assessment of need. This would run contrary to the positive action measures contained herein. While I will not address the issue of substantial restriction, which is covered in another area of the Bill, there are degrees involved. Schizophrenia and other types of mental illness are included in the Bill whereas normal depression is not. I have received a response from many people involved in disability groups to my strong view that if one were to widen the definition to include all types of ailments, the ability of the State to respond effectively to the 8.3.% core group with disabilities would be reduced considerably. Our changing of the definition would not be in the best interests of the people with genuine disabilities whom we all want to serve.
Will the Minister of State will define what he means by "normal depression"?
The depression that the Deputy, I and everyone else get now and again.
We all know people for whom depression is serious. In the equality legislation, the definition included a condition, illness or disease that affects a person's thought processes, perceptions of reality, emotions or judgments that result in disturbed behaviour. We must clarify this. The Minister of State says that depression, which can lead to suicide or parasuicide in many cases, is not to be included in this Bill. I have worked with people who suffer from depression and it is the most difficult impairment or disability to have. A disability Bill that will not work to assist people with depression is amazing.
We will be going into the detail of this in our discussion of the relevant section. I do not want the Deputy to become involved in an area now for which there are specific amendments. We have amended the Bill to include some of the areas to which the Deputy referred. There are varying degrees of mental illness, from normal depression to other types of mental illness, which are included in the Bill. I suggest that we deal with this issue under the section where the amendments have been proposed.
We will await the outcome of that process. I am concerned about episodic illnesses and conditions, including depression, where people can experience periods of wellness and illness. There are also hidden disabilities that are not dealt with.
I am aware that substantial restriction is defined in a later section of the Bill and will be examined when we reach that point. What is meant by "impairment", which is a new word? Is there a definition of impairment in the Bill and, if not, should one be included?
The National Federation of Voluntary Bodies raised the issue of early intervention needs and argued that many parents present to early intervention services with children who have query autistic spectrum or intellectual disability conditions.
All this is covered under the relevant section, including episodic illnesses and conditions.
I thank the Minister of State for that clarification.
Impairment impedes function and the standard dictionary definition of impairment is used in the Bill, that is, "to reduce, weaken or damage, especially in the quality or strength". That is what it means.
Will the Minister of State address the issue of people working outside the State who require services and who may need to bring such services with them when they go abroad? How would such people be covered under the definition of impairment, or are they covered?
Perhaps the Deputy will complete his contribution on this section and the Minister of State will respond to all of the issues raised.
I understood that the debate is open for as long as is necessary on Committee Stage. I have asked a question about people who are in this State.
: Yes, but if the Deputy has other questions he should pose them now so that we can complete the debate on this section.
I may have further questions depending on the response of the Minister of State.
I ask the Deputy to pose any further questions he has on this section of the Bill.
I am finished for the moment unless some other issue arises.
As the Minister of State was speaking, I remembered a comment by the late Brian Lenihan to the effect that sometimes we have to be negative to be positive. That is what the Minister of State is attempting to do here. The difficulty with this section of the Bill is the word "substantial" and it is as woolly as the Minister saying "normal depression". How does one define "substantial"? Substantial incapacity means different things to different people. The Bill is woolly in that regard.
I wish to react to and comment on this section. I am concerned about the Minister of State using the term "genuine" because I do not want to see divisions in the sector between different levels of disability.
This reminds me of the debate that regularly takes place in the primary school sector around children with dyslexia, those with Down's syndrome, and those in wheelchairs and whether some children need services more than others. The level of service required depends on the disability of the individual. We must be careful not to get drawn into arguments about costs and whether resources are going to be directed towards people with one specific disability and away from others.
I am concerned that those who are involved in the serious disability sector would seek to exclude those who are perceived to have a mild disability. In the case of dyslexia, for example, children have a reading difficulty but can get on with their lives 99% of the time. However, they are still entitled to a back-up service for a few hours a day. A child with Down's syndrome requires a greater back-up service, as do children in wheelchairs. I do not want to see divisions emerging between different disability groups.
Different levels of services are available in the country. We have heard the debates about assessment of needs and the prioritisation of issues. One prioritises children or adults who have a major disability and gives them the maximum amount of resources. There will always be priority cases. A child or adult who is both physically and intellectually disabled will need more services than someone with Down's syndrome who has no physical disabilities. However, one should not advocate on behalf of one group of disabled people to the exclusion of others.
To clarify an issue raised earlier, I would never cast any aspersions on anyone. If I have a disagreement with someone——
Obviously I misunderstood the Deputy's comments and I apologise.
I would never cast aspersions on anyone. I believe it is the job of a good civil servant or an adviser to advise a Minister on legislation. To say that this does not happen would be to diminish the intellect of the Civil Service, which has worked exceptionally well for this country over the years. We should not dismiss the Civil Service with platitudes either. It is a very influential body. The people I was referring to are outside influences.
I am concerned about the hierarchy of disability. The Minister of State is at pains to point out that he does not want these matters to end up in the courts and nobody wants that. The last place that anyone wants to go is to court. However, because of the narrow definition in the legislation, a situation could arise whereby someone with dyslexia or with a slight disability in a mainstream school could be excluded from services. I could see such a person going to court to get a clearer definition of disability. We do not want that to happen. We have this legislation and we must endeavour to ensure it is comprehensive. If the legislation is correct, the services will be available to people in need of them once the capacity is in place, and no one will feel excluded.
I agree with the Minister of State that it is not desirable to have people who have the same ability as the majority of the population demanding exceptional care or services. That clearly will not work. However, I do not want to see a hierarchy of disabilities creeping in. That will give us the worst of both worlds and might lead to a court case. In such circumstances, the courts would determine exactly what is a disability and the definition would be broadened. We have an opportunity here and, as legislators, we should decide this issue, not the courts. Unfortunately, the courts have had to make judgments on these matters and the amendments tabled deal with that fact.
On a point of information, I did not inform Deputy Stanton why amendment No. 26 was out of order. It was deemed out of order because it is declaratory in nature and the information about private firms could be more properly obtained by other means.
I agree with Deputy Finian McGrath that we do not want to set one group against another. Many services are provided through the education or medical services as a matter of course. Dyslexia is covered by the Education Bill whereas this Bill will cover a child with a disability and the service needs of that child. The experts and professionals will determine the thin line between someone who is disabled and someone who is not. Legislation cannot provide for that but I am satisfied that the definition will include disabled people as we know them.
Deputy Stanton referred to a disabled person not being able to avail of the services of a personal assistant while abroad. The person will qualify if he or she has a substantial restriction in carrying out business in the State. That restriction continues during a visit abroad and consequently that person would continue to qualify.
It also has a potential impact on students who wish to take part in the ERASMUS programme. They are not carrying out business but they do have a disability that requires services. They would not be participating in social or cultural life. I welcome the Minister of State's clarification but we have to be sure that people who are temporarily absent from the State can bring the services with them if necessary. This may apply to someone on holiday. He or she should be able to bring along the services, just as the Minister of State, the Chairman or I would be able to. I ask the Minister of State to examine this and to include an amendment that caters for a temporary absence from the State.
We are satisfied that the Deputy's point is covered.
Will it be on the same basis as the Social Welfare Act, where notification in advance is required for a specified period of time?
There is no necessity for notification.
Is there no necessity for notification at all?
Would payments come under the Social Welfare Act?
That is what I said. Is there an entitlement for the person to leave?
There is no issue in respect of the Deputy's point.
Is the Minister of State saying that if someone has a personal assistant, paid for by Government funding, he or she can leave the State and continue to receive payment for six months?
If somebody goes away indefinitely that may not apply. In the case of someone taking a holiday that is covered.
If notification is not necessary, how does anyone know the length of the period? How does one know if the person is going away for one month, six months or five years? I find it peculiar that the Minister of State does not think notification is necessary.
We are only talking about the definition here. If particular criteria apply to services——
There would have to be compliance with rules governing the provision of services. It would work in a similar fashion to the Social Welfare Act. That is what I understood.
The Committee divided: Tá, 7; Níl, 4.
- Ardagh, Seán.
- Brady, Martin.
- Fahey, Frank.
- Glennon, Jim.
- Hoctor, Máire.
- Ó Fearghaíl, Seán.
- O’Connor, Charlie.
- Bruton, Richard.
- Lynch, Kathleen.
- McGrath, Finian.
- Stanton, David.
Question declared carried.
Sections 3 and 4 agreed to.
Amendments Nos. 27, 29 and 33 are related and may be discussed together, by agreement.
I move amendment No. 27:
In page 8, subsection (1), between lines 32 and 33, to insert the following:
"‘service plan', in relation to a specified body, means a service plan or other similar document approved by the Minister to whom that body is required by an enactment to submit such a plan or document;
‘specified body' means the Executive or any other public body an officer of which is the accounting officer in relation to the appropriation accounts of that body for the purposes of the Comptroller and Auditor General Acts 1866 to 1998.".
These Government amendments are necessary because of new accountability arrangements which apply to the Health Service Executive. The definition of specified body and the new subsection 3 reflect the fact that bodies such as the HSE are directly accountable for funding received from the Exchequer. The amendments also respond to criticisms made by interest groups about the complexity of the language in this section, especially subsection 3. As a result, I asked the Office of the Parliamentary Counsel to consider these concerns and am pleased to say that the provision is easier to read. However, the section is a precise technical and legal provision and it is not possible to simplify its language beyond a certain point without altering its meaning. In making these changes, the text was also reviewed from a technical and legal perspective. The revised wording reflects the outcome of that process.
The Chairman is moving quickly and I am trying to keep up. The Minister of State is moving amendments Nos. 27 to 29, inclusive.
Amendments Nos. 28, 30 to 32, inclusive, and 34 are out of order. We are effectively discussing Amendments Nos. 27 to 34, inclusive, a number of which are out of order.
Amendment No. 27 is in order.
Amendment Nos. 27, 29 and 33 are in order.
Concerns exist with regard to section 5, which we received late.
Yes, and the Deputy will be allowed all possible latitude.
The priorities for the Health Service Executive are to look after hospitals and public health services. There are concerns that it will only turn to this area when those priorities are dealt with. I am unsure whether the Minister of State's amendments altered this situation. I asked earlier whether funding for disability services will be ring-fenced. Given that the Minister for Finance has said that a great deal of money will be available for disability services, will this money be protected from the general maw? This issue is important. I am uncertain whether section 5(3), which is difficult to read, has been changed by the Government's amendments. This section seems to imply that other matters will be looked after first. The Minister for State should clarify this matter.
A five-year plan was mentioned but what happens afterwards? Other services, such as education, the Army and the Garda, once funding for them is put in place, are not limited by time. This matter also needs clarification. I will return to it after hearing from the Minister for State and my colleagues.
I am disappointed that amendment No. 34 was ruled out of order. That is the reality of the situation. Amendment No. 29 raises the question of money for services. I agree with Deputy Stanton's comments on the issue of money being ring-fenced. This is an important issue in the delivery of services for people with disabilities. Criticism was made in recent years of the effective management of and allocation of moneys to disability services. There are some examples of good practice in some of the services. I commend the people who run these services, with some of whom I have had the experience of dealing over the years. There are also other groups within the services who do not effectively manage them and, as a result, some people with disabilities do not have access to services. This is an important issue that needs to be addressed.
In the overall context, this Bill and this amendment should be solely about equality. That is the direction in which we should move in dealing with these amendments.
I support what Deputy Stanton said. We have not reached the Labour Party's amendment to this section but this section will be meaningless if it remains as worded. It is wrong to give a Minister for Finance complete discretion as to how much money can be allocated, particularly when members of the public, apart from those who have an interest in the area of disability, are under the impression that this legislation is not about money. Clearly, it is also not about people's rights.
The Government has made a big play of the fact that it will allocate large amounts of money to disability services. A concern of members of the disability community and public representatives is that, once the five-year funding programme is rolled out, what happened on one occasion in the past will happen again. When the Minister for Finance, Deputy Cowen, was Minister for Health and Children for a short period, he introduced a two-year roll-over programme in terms of funding which, when he moved from that Department, ceased to be provided.
To provide that the Minister of the day will have ultimate discretion as to how much money will be allocated in any year makes this section meaningless. What would happen if the Minister of the day decided there were greater priorities, that sufficient money had been allocated to disability services, or, as in the case of child care services, that disability services should be self-sustaining? The approach taken might be that people with disabilities have been given enough funding and, as in the case of unemployed people, they should try to get a job in the marketplace.
The issues in this section are the financial element and the power of the Minister to use his or her discretion. The discretionary power of the Minister is so heavy-handed that it makes the section meaningless. When we reach later amendments, I hope the Minister of State will recognise this point.
I gave the Deputy a letter earlier today stating that all her amendments to this section are out of order. Therefore, we will not reach her amendments.
That is the reason I spoke on these amendments.
That is fine. I simply wanted to clarify the position.
In response to what Deputy Lynch said, one cannot legislate for what a Minister can decide. It is not possible to do that. Even if the Labour Party were in Government tomorrow morning, what the Deputy suggested would not be possible. It has never happened and it does not happen. One cannot tie the hands, so to speak, of the Minister for Finance by way of legislation. That is not possible.
Under section 5(2), an attempt was made for the first time ever to require Ministers, as far as possible, to specifically allocate an appropriate amount of money each year for the provision of disability services. That is what this section is about. This requirement will lend transparency to the resourcing of disability services. It will also support clearer analysis of the efficiency of service delivery. The section states that the Minister must have regard for his or her other responsibilities but at least this section sets down for the first time that the Minister is required to spell out at the beginning of the year what amount of money is required for disability services.
In response to what Deputy Stanton said, that does not involve ring-fencing moneys for disability services. One cannot force a Minister by way of legislation to be specific about what money is required. Consequently, one must have regard, as provided in this section, for the other responsibilities of a Minister.
I am aware that the Bill should dictate a certain level of resources for disability services. This Bill seeks to constitute one of the priority areas for resources. Members will be aware of the unprecedented commitment being made to the provision of multi-annual funding to significantly improve the capacity of the service provision. Public bodies will continue to be free to allocate additional funding that becomes available on an administrative basis but they cannot be compelled to do so under section 5. I repeat the point, which I sincerely and genuinely make, that irrespective of what party is in Government, that is the situation that exists. I have had robust discussions with officials of the Department of Finance and the Minister for Finance in this regard, but in the context of good governance and proper procedures being followed in respect of public expenditure, there is no other option. Any party in Government would be held to the same constraints as I am.
I understand perfectly what the Minister of State has said and that he has said it in good faith and believes it. The difficulty with funding for disability services is that the disability area is not under the remit of a specific lead Minister in a specific Department with sole responsibility for this area. Therefore, funding for disability services will always have to compete with funding requirements to meet other needs. We are concerned about the provision of funding for disability services because disability issues are covered by a number of Departments and, under this legislation, all those Departments will be obliged to take account of their other needs.
I believe that the mindset and attitude adopted are very important in dealing with disability issues but funding for disability services is crucial at this point. The reason we are concerned about funding for disability services is that needs in this area will continue to compete with needs in other areas of responsibility of the Departments which deal with disability issues. The Minister of State has said that he cannot do what we request, but he could if disability issues were made the responsibility of a specific Department which did not have competition needs in other areas. Not a penny of the €500 million in multi-annual funding has come through yet.
On a point of order, the point the Deputy made is important. Even in the situation proposed by the Deputy, officials in the relevant Department would have to go through the Estimates process with the Minister for Health and Children and that Department.
I agree with the Minister of State.
No. I am not saying one can avoid it. I suggest the only remit of such a Department would be to argue the case in regard to disability issues. Our concern relates to competing needs in the Departments that cover disability issues. I am not sure that I have all the answers but I recognise that there is a difficulty. I agree with what the Minister of State said about the need for prudence. However, as long as there are competing needs and Departments have other issues to consider, funding for disability services will not be top of the list. My difficulty is that funding for disability will not be top of the list. I am not certain if I were one of the other groups competing for the funding that I would want it to be top of the list. This is why we are asking specifically that the funding be ring-fenced. Given that there is need for a significant amount of capital funding to be frontloaded to create capacity, this funding should be ring-fenced. There may come a time when women will be in all the top jobs and we will not even notice they are. There may come a time when disability will become so mainstream that it will be fine for it to be part of the overall funding pot. However, that funding needs to be protected. We need to know how much it will cost and ring-fence it. I do not think the Minister of State will change his mind but I am saying there is an alternative view.
There is no wish on any of our parts to reduce the amount of money to the disability sector. However, I am concerned about one issue. While section 5(3) states, "the amount remaining after the allocation that is available to the Minister as aforesaid for that year is not less than the amount that is appropriate for the purposes of the performance by the Minister of his or her functions in that year", yet amendment No. 33 states that in determining the appropriate allocation, the Minister or specified body concerned shall ensure that the amount remaining after the allocation is not less than the amount that is required and so on. There appears to be a change of emphasis in that whether it was appropriate or not, it appeared to give a bit more flexibility. The amendment appears to suggest that priority is now being given to all matters other than disability. I do not know if this was the intention.
That is not the intention; it is the simplification of the language. I agree with the point made earlier that the language used originally was very difficult. In making these changes, the text was reviewed from both the technical and legal perspective. The revised wording reflects the outcome of that process, but it is not intended to change the balance in any way.
On the point made by Deputy Lynch, it is an extremely difficult area in that one cannot prescribe in legislation the amount of money to be provided. Under section 5(2), the Minister is specifically required to allocate an appropriate amount each year. One must provide a balance but this cannot be done at the expense of other requirements. In setting out the objective that the Minister must provide at the beginning of the year the amount of money to be provided together with the multi-annual funding that is now being provided, one is stating clearly and categorically what money is to be provided. I suggest that it would be a brave Minister who would decide subsequently to reduce that money or discontinue it. However, one must provide for possibilities that may occur. One must provide for the possibility of, say, an outbreak of bird 'flu or whatever.
Since the Cowen package was introduced, which was the first attempt at multi-annual funding and which increased funding, there has been an increase in funding. There has been no question for some years of reducing funding in the disability sector. I put it to members of the committee that the Government must be trusted to include the substantial amount of extra resources we all agree is required to provide comprehensive services and close off the gaps alluded to earlier by Deputy Finian McGrath. In setting out the multi-annual package in the budget, the Minister for Finance set out a floor funding requirement of €900 million over five years. This is not to suggest that in any one Estimate's process over the next five years more money will not be provided as more money is required. A floor level has been set out but there is always the possibility that further moneys can be provided. I suggest that in the statements of assessment, the service statement and the gap that exists between the two, there is an amendment to include that macro figure for unmet need. This will make quite clear the amount of money required to give everyone the content of the service statement. In that context, if one takes the provision in the Bill and the provision of the multi-annual funding mechanism, the thrust of Government policy is to provide for the extra resources required for the period involved. One must take it that this is the Government's intention. The whole ethos of the Bill is to underpin the process of providing extra money as we go along.
Is the Minister of State saying that the debate on funding for people with disabilities is over, that it is now Government policy to provide the services and the resources and he is asking us to trust him on this?
I would not say the debate is over because a debate of this nature is never over. For instance, one can rightly point out that expenditure is not being provided as quickly this year as it should. This is being rolled out as we speak but there are still gaps in the services. Services throughout the country are being told that they will not get extra money, whereas they expect they will. A number of practical issues must be dealt with, of which I am acutely conscious.
Is the Minister of State accepting in principle that services for people with disabilities must be funded?
In principle, the Government has always said that, by degrees, over a number of years and as resources allow, it will put in place extra resources. That was the thrust of the extra package of multi-annual measures in the budget. I am not saying sufficient money will be provided this year, next year or the following year.
We would not expect that.
The thrust of Government policy is that with the multi-annual funding, extra resources will be made available by degrees to try to provide the comprehensive services required.
It is important to take into account that what the Minister said in the debate is part of the overall intent of the Government and must be taken at face value.
I have gone into this in some detail and I can see there is some movement from what was in the original Bill. There are also many conditions. Amendment No. 29 refers to moneys available to the Minister for that year. This is the first condition because obviously the money must come from the Exchequer. It refers to such amount as the Minister considers appropriate, which is another condition. The Minister must make a decision, and I hope he or she will make the correct decision. The amendment also states that a specified body may provide or arrange for the provision of services under the Act and allocate out of the moneys available to it for that year such amount as it considers appropriate for the provision of those services. This means another body will make a decision.
It is a little strange that amendment No. 33, which is a rehash of the one concerning section 5(4), implies that no additional resources can be requested for assessed services within any financial year. This is not the case with most Government services. It is unusual that the Minister or specified body, as the case may be, shall not be required to allocate funds. The proposed new subsection (5)(a) states that nothing in the act shall be construed as requiring the allocation of additional moneys. The Minister mentioned an outbreak of bird flu. If something unusual happened in the disability area that required additional moneys, the Minister would be in a straitjacket of his own making.
The legislation states that the Minister shall not be required to allocate further moneys. This means nobody can tell him what to allocate.
That is incorrect. The Minister can allocate further resources if he so wishes. Perhaps a larger Department would allow for resources to be transferred into the disability area as the year progresses. There is nothing in the legislation to prevent this.
The legislation uses the phrase, "cost of the provision of which could not be met out of the moneys allocated". The budget is set at the start of the year and the moneys are allocated. It appears that section 5 is another section that implies one cannot go to court, for instance, and argue that services need to be provided. If, for instance, the Ombudsman finds that a person should receive a service for which money has not been provided, he or she cannot say to any Department or specified body that it must provide the service.
In other Departments, a Supplementary Estimate might be introduced. However, in this case, it is specifically written into the legislation that no body, including the Office of the Ombudsman or the courts, can require the Minister to allocate additional moneys. There are many trapdoors in section 5 that ensure that the amount of money available cannot be increased, unless the Minister for Finance makes the money available. The proposed new subsection (5)(a) states “the Minister or specified body concerned, as the case may be, shall not be required to allocate, and nothing in this Act shall be construed as requiring the allocation of, additional moneys under subsections (2) or (3) for that year”. Why is that included? What is it preventing from happening?
The Deputy's statement that moneys are only provided at the beginning of the year is incorrect. The money is provided but it is at the discretion of the Minister or body concerned to deduct from or add to it. They cannot be compelled to do so by the legislation or by the Ombudsman. That the decision is at the discretion of the Minister represents the thrust of this section. Given that the thrust of policy over recent years has been such that moneys allocated have not been reduced, the provision sets out at the beginning of the year the amount of money to be allocated to disability services. The allocation is not ring-fenced because the legislation cannot force the Minister to increase or reduce it. The Minister must have regard to his other responsibilities.
Is the Minister of State stating that other services will probably take precedence? I refer to what one might call the essential services and the running of hospitals by the HSE.
No. It is not that they will take precedence but that the Minister must have regard to them. His having to outline at the beginning of the year the specific allocation for disability services is a new departure. The sum allocated to the disability sector will be clearly stated and there will be transparency in respect of the sector for the first time.
If, ten months into the year, it is discovered there is a shortfall in the amount required for disability services, the question of whether to make more money available will involve a political decision on the part of the Government. The only pressure that can be applied to make the money available will be by way of a vote in the Dáil or public pressure on the Government. A person who may require an essential service that would allow him or her to live in as normal a way as possible will have absolutely no redress in trying to obtain that service. Does the Minister of State agree?
Amendment agreed to.
We have discussed amendments Nos. 27, 29 and 33, and amendments Nos. 28 and 30 to 32, inclusive, have been ruled out of order.
Amendment No. 28 not moved.
I move amendment No. 29:
In page 8, lines 36 to 50, to delete all words from and including "out" in line 36 down to and including "year" in line 50 and substitute the following:
"subject to subsections (4) and (5), allocate out of the moneys available to him or her for that year such amount as he or she considers appropriate for the provision of those services.
(3) Where, in the financial year 2005 or any subsequent such year, a specified body provides or arranges for the provision of services under this Act, that body shall, subject to subsections (4) and (5), allocate out of the moneys available to it for that year such amount as it considers appropriate for the provision of those services”.
Amendment agreed to.
Amendments Nos. 30 to 32, inclusive, not moved.
I move amendment No. 33:
In page 9, lines 1 to 13, to delete subsection (4) and substitute the following:
"(4) In determining the appropriate allocation under subsections (2) or (3) in a financial year, the Minister or specified body concerned shall ensure that the amount remaining after the allocation is not less than the amount that is required, having regard, inter alia, to—
(a) the extent of the Minister’s or the specified body’s other obligations in that year, and
(b) in the case of a specified body, its service plan for that year, for the performance of the functions conferred on the Minister or the specified body other than by this Act.
(5) If satisfied that the amount of the moneys allocated under subsections (2) or (3) in a financial year is the maximum amount permitted by this section to be so allocated—
(a) the Minister or specified body concerned, as the case may be, shall not be required to allocate, and nothing in this Act shall be construed as requiring the allocation of, additional moneys under subsections (2) or (3) for that year, and
(b) the Minister or a relevant public body in relation to the Minister or a specified body, as the case may be, shall not be required to provide, and nothing in this Act shall be construed as requiring the provision by or on behalf of the Minister, the relevant public body or the specified body of, services under this Act in that year the cost of the provision of which could not be met out of the moneys allocated under subsections (2) or (3).”.
Amendment agreed to.
Amendment No. 34 not moved.
Question proposed: "That section 5, as amended, stand part of the Bill."
We cannot agree to this. Apart from the questions of money and the obvious heavy hand of the Department of Finance, other questions must be answered. Amendment No. 34, tabled by me and Deputy Finian McGrath, was ruled out of order because of a potential charge on the Exchequer. It required the insertion of a new subsection in page 9 of the Bill after lines 13 and 14. The section as it stands restricts people's access to services and ensures that they cannot take an action against the State or the Minister. I would like the Minster to examine this. My information and that of Deputy Finian McGrath is that the section is unconstitutional. It would be dangerous to leave it unamended because it could very well give rise to an action against the State. The amendment states:
Subsection (4) does not apply so as of itself to defeat or make non-cognisable by the courts a claim against the State, a Minister or a relevant public body seeking an order for the provision of services by a Minister or a relevant public body, or for compensation for loss or damage occasioned by the non-provision of such services, or any other claim arising from the omission to provide such services, where the non-provision of such services to a person is claimed to amount to a breach of a constitutional right of that person.
We cannot discuss that amendment at this stage.
I am just bringing it to the attention of the Minister of State to save late consideration of an amendment which has already been flagged. If, for example, primary education was not provided for a person constitutionally entitled to receive it within the agreed expanded parameters of primary education, for those benefiting from the guarantee, the section would be unconstitutional if it had the effect of defeating a claim for the provision of that service. The Minister of State needs to look at this. I will furnish my notes to the Chairman if necessary.
If the Deputy wishes to provide her documents I will be happy to consider the question. It is a matter for the person affected to challenge the constitutionality of any aspect of the legislation.
I flag the issue because I am not the only person who received that opinion. We received it from two people separately. In other words, it did not come from a lobby group.
The Deputy will provide the information for the Minister of State to consider. The matter can be discussed if a further opportunity arises.
Question put and agreed to.
Sitting suspended at 1.45 p.m. and resumed at 2.30 p.m.
Amendments Nos. 35 and 328 are related and may be discussed together.
I move amendment No. 35:
In page 9, before section 6, but in Part 2, to insert the following new section:
"6.—The Minister shall, not later than 5 years after the commencement of this Act, carry out a review of the operation of this Act".
This amendment will provide for a review of the operation of the Bill's provisions within five years after the commencement of this Act. In setting out a five year timeframe I have decided to link the timing of the review with the end date for the investment programme in 2009. The amendment is in response to a recommendation from the disability legislation consultation group and a number of Deputies who sought a review within three years of the enactment of the Bill.
Amendment No. 328 would require a review within two years. The Government amendment allows for a review to occur not later than five years. A review within a shorter time is not ruled out if such becomes necessary. I note that this amendment also specifies consultation with interest groups and a report to the Oireachtas. In putting the commitment to a review of the legislation on a statutory footing I am taking a significant step. The Bill is the result of extensive consultation and any review thereof would have to follow the same approach. Likewise, the outcome of the review would be open to discussion and debate both in the Oireachtas and elsewhere. I do not intend to specify the level of detail relating to the review of the Bill and I do not, therefore, intend to accept amendment No. 328.
I welcome the Minister's amendment which goes a long way towards what we sought, which is to have the Act reviewed. Under the Minister's amendment it will be reviewed five years after the commencement of this Act. Does that mean the commencement of the Act in its entirety? As we said earlier this legislation, like other complex legislation, will come into operation at different times. Does the Minister mean the review will take place from the time every section of the Act has commenced or from the time he puts the first section into operation? That is a technical issue on which I would like clarification. It is usual for such reviews and reports to be laid before the Houses of the Oireachtas and for a reference to be included in a provision such as this. That probably will happen but it is often the case in legislation that we would include a provision that a report be laid before the Houses of the Oireachtas as soon as possible. I do not understand the problem with that.
The Minister said earlier that the review would take place five years after the commencement of the Act, which is in line with the multi-annual package that has been brought forward. The difficulty with that is that the review will start as the multi-annual funding is coming to an end. The Minister said that does not have to be the case but if that were the case there would be a delay between the end of the multi-annual funding and the next tranche of funding becoming available prior to the completion of this review. It would be better if the review were to begin before the funding is due to end because the Government of the day could learn from the review findings and plan for the next tranche of funding. It might be more practical for everybody if the Minister agreed that the legislation would be reviewed within, for example, a year of the multi-annual funding coming to an end. It is hoped that a new tranche of funding for a further five years will come on stream and that the review findings will become available in the middle of that period, although there is no reference to the length of time the review will take or when it must be produced. Presuming the review recommendations become available a year and a half or two years into the second tranche of funding, the Minister may have to wait until the end of that funding period before he or she can make changes.
Timing issues arise here that could be useful in terms of overlap. Does the Act have to be commenced in its entirety before this review starts or can one section be passed? How long will it take for the review to be carried out? Will there be an end date by which it must be made available? Will the review be laid before both Houses of the Oireachtas? Will the Minister answer the other question about the overlap in terms of the end of the funding period?
I agree with Deputy Stanton. Because of the debate we had on the ministerial orders and regulation it is unclear as to when the clock will start, so to speak. Will it be in the middle of the five years, after four and a half years or when? My view is that five years is too long a period when it concerns legislation on access to services. After five years the Minister could face a major crisis in the sector that had not been highlighted during that time and may cost an enormous amount of money to put right. We must have clarification on the commencement of the Act, when the clock will start ticking in terms of the review and then seriously examine it. A three year timeframe is preferable because any review will take at least 12 months and under this proposal we will be into the fifth year by the time we get the information. If we are only arguing about a year either side, the Minister should consider accepting the amendment.
On amendment No. 35, I welcome the insertion of this new section because it is essential we review the legislation. I welcome the Minister's statement that he met the disability groups and listened to their concerns about this issue.
On the issue of making the legislation more effective, I agree that five years is too long a timescale. Two to three years would be my preferred option but I welcome the fact that it is being done. The review is essential because it is important we have a detailed analysis of the legislation in terms of what is and is not working.
Was NAMHI one of the groups the Minister consulted?
That group was represented in the DLCG.
That group passed a motion at its conference in April which stated that this Bill is so fundamentally flawed merely asking for it to be amended is futile. It stated also that this Bill must be replaced with rights-based legislation. NAMHI is taking a strong line in terms of rights based legislation.
Overall, I welcome the fact that the legislation will be reviewed but I urge the Minister to examine the other options.
We decided on a five year review because it coincided with the completion of the investment programme. To have considered a shorter number of years would be asking for the legislation to be reviewed before a reasonable timescale had passed in terms of its operation. The review will take place within five years and if a major difficulty were to arise, as outlined by Deputy Lynch, there is no reason a review could not commence prior to the five year period.
On Deputy Stanton's question about the commencement of the Act, the intention would be that the five year clock, so to speak, would start at the start of the implementation of the Act. Once we begin to implement the Act I expect that the five year period would commence from then. There is no hard and fast rule, however. We were anxious to respond to the principle of a review being inserted in the legislation and we have done that. We considered three, four or five years but we felt that not later than five years was the best mechanism, and we are satisfied with that.
I thank the Minister for that reply. When does he envisage the Act will commence?
I hope to be more definitive about that before the Dáil and the Seanad have completed their consideration of the legislation. We are currently in discussion with the HSE and other bodies about the preparation of the regulations and standards, which are the two critical areas on which we must have definitive decisions before we can talk about timescales. I hope to report back to Deputies before the legislation is complete on the kind of timescales we have in mind but that will be largely a matter for the implementation groups.
Is it the intention that it will be in place as soon as possible?
The Minister mentioned the five year multi-annual funding. Has that commenced?
It is probable, therefore, that if five years is the outside time limit for the review that funding will end by the time the review commences, let alone reports.
One cannot speculate about these matters at this stage. There is no reason multi-annual funding will not continue after 2009.
Of course. However, surely the review should feed into a decision that might be made on multi-annual funding and that should happen at quite an early stage. Deputy Lynch said that it might be beneficial if the review were to take place a year earlier. I am trying to be helpful.
Is it not likely that there would be an election in under two years and following it, under this provision, the new Government could decide to review the legislation immediately?
We want to get this right for when we will be in office.
There is plenty of leeway and discretion in the section.
Deputy Stanton's wish might come true.
What is proposed is a big improve-ment.
Amendment agreed to.
I move amendment No. 36:
In page 9, subsection (1), to delete line 17.
This amendment removes reference to the Health (Amendment) (No. 3) Act as this no longer has relevance in Part 2 following the establishment of the new health structures.
This is a technical amendment.
Amendment agreed to.
Amendments Nos. 54, 117 and 118 are related to Amendment No. 37 and therefore amendments Nos. 37, 54, 117 and 118 may be taken together.
I move amendment No. 37:
In page 9, subsection (1), between lines 19 and 20, to insert the following:
"‘appeals board' means the Special Education Appeals Board established under section 36 of the Act of 2004;".
Under section 10, the liaison officer can request the council's support in preparing a service statement, including the identification of an appropriate education service for persons with disabilities over 18 years of age. The amendment I propose would allow the liaison officer to involve the Special Education Appeals Board if the council fails or refuses to act on the liaison officer's request. The board was established under the Education for Persons with Special Educational Needs Act 2004 and it deals with appeals made under that Act.
Government amendment No. 54 expands the functions of the board to enable it to hear and determine an appeal of this nature under the Bill. These additional arrangements will ensure co-operation and foster the efficient development of a comprehensive service statement that will include education services as necessary.
These amendments arise from the proposition put forward by the NDA. I am happy to follow its suggestion. It pointed out the tighter provisions that exist in the Education for Persons with Special Educational Needs Act 2004, and these amendments are based on those provisions.
I do not propose to accept amendment No. 117 as it is inappropriate to specify a timeframe in section 10(4)(d).
Amendment No. 117 proposes "In page 14, subsection (4)(d), line 22, after “writing” to insert “, within a specified timeframe,”. I disagree with the Minister of State on the issue of specifying a timeframe. Time is of the essence when dealing with these issues, services and people’s rights. We need to be more specific and that is the reason I tabled this amendment, which I intend to press.
Amendment agreed to.
I move amendment No. 38:
In page 9, subsection (1), line 22, to delete "a health board" and substitute "the Executive".
Amendment agreed to.
I move amendment No. 39:
In page 9, subsection (1), lines 24 and 25, to delete "a health board " and substitute "the Executive".
Amendment agreed to.
Amendments Nos. 40 to 44, inclusive, not moved.
I move amendment No. 45:
In page 9, subsection (1), to delete lines 29 and 30 and substitute the following:
"‘needs officer' shall be construed in accordance with section 7 and section 10. Each subsequent reference to ‘assessment officer’ and ‘liaison officer’ in this Act shall be construed as references to ‘needs officer’;”.
In this amendment we examine what the Minister of State referred to earlier as the level of bureaucracy in the system and the need for the various officials who will deal with assessment, needs and complaints. We need to tease out the number of assessment officers required and the qualifications they will be required to have. An assessment officer carries out or arranges for the carrying out of the assessment. The liaison officer will receive the report or service statement and approach the health service to try to get the required service put in place. Why is it not possible for the same person to do those two jobs? Why is it necessary to bring in another person to liaise with the health service or the service provider? Why can the assessment officer not manage as a one-stop shop, so to speak, and be responsible for the assessment and use the knowledge and experience gained from carrying out the assessment to access the service?
It appears that the two officers will require the same kind of expertise. They will both be employees of the Health Service Executive. We appear to be duplicating work by requiring two officers when one should be sufficient. If one person were responsible for those two jobs, that would result in a better service being provided for a person with a disability. One person or office would have all the knowledge required. The system as laid out in the section is bureaucratic. An assessment officer will carry out the assessment and pass it to another office. That system is creating work and it would be far more streamlined if one office or one person could carry out the assessment and proceed to get the service provided. That would make more sense.
We propose to change the name of the officer to a needs officer who would assess the need and try to provide for the need. One officer would do all the work. If we had one set of staff and one set of offices, that would cut down on the level of bureaucracy. People who require this service would only have to approach one person. When one goes to an office to access a service, one often finds that the staff in that office blame another office for the service not being made available. Therefore, it might be useful, if possible, to dovetail the provision of the service. The Minister of State might examine that.
I support Deputy Stanton's amendment. The proposal to have a needs officer is important. As the Deputy said, it would cut down on a layer of bureaucracy. It is essential that we focus on the needs of the person with a disability. That should be the objective of this Bill. We are talking about the needs of and providing a service for a person with a disability. I strongly support the amendment.
Irrespective of what officers are put in place in this structure or even if there were four layers within it, such officers would be restricted in accessing a service if one is not available. I support the amendment because it would make structures less bureaucratic and less of a minefield for people who have enough difficulties to begin with. We are talking about angels on the head of a pin at this stage. If the services are not in place, such an officer will not be able to access them, regardless of who they approach, what title they hold or how friendly they are. I support the amendment.
Does the Deputy see the needs officer as an advocate for the person who has the needs by combining the assessment and the liaison roles?
The Comhairle Bill is due to be introduced and we are told it will provide an advocacy service as well. I have encountered situations previously where there were three or four different layers of bureaucracy. I do not fault the people but the system. I recall writing to a health executive about an appliance needed by an elderly person. The request had been passed but there were three different layers of people in the health authority writing to each other about it. They were extremely busy writing letters but nobody was making a decision.
One of the criticisms of this Bill is that there is too much bureaucracy in the needs assessment and complaints areas. We must try to streamline that. I do not see why one office cannot deal with the assessment and then liaise with the executive to get the service statement organised. I am trying to pull the functions together rather than have two separate areas. When one is talking about an assessment officer one is also talking about a bureaucracy of people around that officer. One person cannot conduct the assessment alone. He or she would have to bring in assistance because the range of disability is so great and varied, as we discovered during the committee's hearings previously. The idea is to streamline this into one office that will specialise in assessment and liaising with the health executive to organise the service statements.
What was agreed with regard to amendment No. 117?
We will not reach that amendment until later but it was discussed and the Minister disagreed with it.
I am prepared to examine it and to discuss it with the Department of Education and Science. I will revert to the Deputy on it.
With regard to this amendment, I do not have a major difficulty with what was said by the Deputies. However, the amendment proposes to unite the functions of the assessment officer under section 7 and the liaison officer under section 10 under the title of "needs officer". One of the difficulties is that the assessment officer has statutory independence. The lobby groups insisted on this. He or she will identify the individual needs arising from the assessment without regard to resources or eligibility. The liaison officer, on the other hand, must take a range of practical considerations into account to determine how needs can best be met within the resources available. The liaison officer will operate as part of the HSE and will take account of the practical limitations that exist in providing services.
I believe the two roles are fundamentally different but I accept the points made by the Deputies. In this area, the way the regulations are drafted for the practical implementation of the assessment, liaison and service statement preparation are central to the successful implementation of the Bill. We are in discussions with the HSE, which is working on the details of those regulations. While I will not be in a position to outline the details, I hope to return to the committee and involve it in discussing the general principles under which the HSE will operate. The way this process will operate in practice is fundamental to the Bill's success.
When I come back to the committee with further details on how the regulations will be implemented, the issues raised in this discussion can be examined. Notwithstanding the statutory independence of the assessment officer, it is the desire of the HSE and the Department to have an efficient, consumer friendly and effective mechanism for the preparation of the statement of assessment, the role of the liaison officer in compiling the service statement and the roll out of that statement. There are ongoing discussions about how this should happen. I hope to bring further information on this — we will receive it shortly from the HSE — to the committee's attention so it will have an indication of how it is proposed to implement this. In that context, I have an open mind with regard to what the provisions will be, notwithstanding the requests we have received to ensure that the assessment officer is statutorily independent.
I am concerned about something else now. We are on Committee Stage but the Minister is saying the HSE must still bring forward proposals. These proposals could impact on the legislation and lead to changes therein.
No. The HSE does not have to bring these regulations forward until after the Bill is passed. The regulations are dependent on the legislation. The LCG made the point that it did not want to buy a pig in a poke. I am anxious to make available the general principles in the regulations in order that everybody will be informed about them. However, there is no obligation on the HSE to bring forward regulations until after the Bill is passed. That is the normal procedure with legislation but I am attempting to be of assistance to the committee and the disability groups by trying to produce this information as quickly as possible. It most likely will not be definitive but it will at least outline the type of arrangement that is expected to be put in place. Much work has been done and a number of meetings have been held. This is all part of trying to move the implementation phase forward as quickly as possible.
My understanding of the Minister's comments is that changing or examining the role of assessment officers and liaison officers depends on discussions that are due to be held with the HSE. The Minister said he was examining this area and that there might be a possibility of combining the two. If that is the case, it must be in the legislation and it must be done now or on Report Stage. If the legislation remains unchanged, there will be two separate officers, the appeals officer and the liaison officer, carrying out the two separate functions.
I am trying to be co-operative and proactive with regard to the amendment. The Deputy should withdraw the amendment if that is the attitude he wishes to take.
No, the Minister misunderstands me. I am trying to be co-operative as well. I understand there will be discussions with the HSE. The Minister said that.
There have been discussions in the past.
They are ongoing. Does the idea of amalgamating these two functions or roles in some way, as is proposed in good faith in this amendment, depend on the HSE coming back to the committee and stating whether it is a good or bad idea or is the Minister saying he does not accept the amendment? Is the Minister saying it is not a good idea?
If one looks at the first sentence of sections 7 and 10, it is the same person. Both sections state that the executive may authorise such persons as it considers appropriate. Therefore, the executive can authorise one person to act in both capacities. Will that be done in consultation with the HSE?
Yes. The HSE is concerned with the implementation of the Bill. I have said that it is not possible to amalgamate both, as the Chairman has proposed, because the assessment officer has statutory independence whereas the liaison officer has a different role. It may well be that, as regards the implementation, the ethos to which the Chairman is referring could come through in practice. I am trying to be of assistance to the committee in stating that something along those lines may emerge, although not necessarily exactly as it is here. We are most anxious to ensure that the best customer-friendly and client-centered system is put in place. For that reason, I want to engage as far as possible with the committee concerning the detail. The committee has an important contribution to make. Rather than putting the legislation through and then telling the HSE to bring in the regulations because we are out of the loop, I have asked the HSE to revert to me with as much detail as it can on the implementation procedure.
We have had a healthy debate, and a useful one from the HSE's point of view. I am sure the Minister of State will revert to this matter on Report Stage when it will be discussed further.
Obviously the Minister will not accept this amendment but I welcome the fact that he is examining the need to reduce the level of bureaucracy. I will withdraw the amendment on that basis.
Amendment, by leave, withdrawn.
I move amendment No. 46:
In page 10, subsection (1), line 1, to delete ‘"(including a personal social service)"' and substitute the following:
", including a personal social service, such as home care, respite care, personal care, and social supports,".
This amendment would make the definition wider and more detailed. The term "personal social service" is not defined in the Bill, hence the reason for the amendment. By widening the definition it gives examples of what a personal social service might include.
I support amendment No. 46, as it gives the Bill more teeth and strengthens it generally. It also ties down the specific reference to personal social service. It is essential that specific reference should be made to issues such as respite care and personal care, particularly for people with disabilities. Respite care is a major problem area, especially for people with intellectual disabilities whose parents may be elderly and unable to look after them. The same applies to personal care in this respect. I am supporting these practical proposals in the amendment.
The amendment proposes to give examples of personal social services for the purposes of Part 2. I understand from the Department of Health and Children that some personal social services, such as residential care, are covered in existing health legislation. Any further expansion of the scope of such provisions by way of defining personal social services would be more appropriately dealt with in that legislation. I, therefore, do not propose to accept this definition.
Amendment, by leave, withdrawn.
I move amendment No. 47:
In page 10, subsection (1), line 2, to delete ‘"a health board"' and substitute ‘"the Executive"'.
Amendment agreed to.
Amendments Nos. 48 and 50 are related and may be discussed together by agreement.
I move amendment No. 48:
In page 10, subsection (1), between lines 7 and 8, to insert the following:
"‘urgent conditions' includes episodic or chronic impairments.".
The Minister of State has tabled an interesting amendment in this area. There was a concern that episodic or chronic impairments would not be covered in the Bill. Reference was made earlier to people with depressive illnesses who may experience acute phases of illness from time to time. In case of severe depressive episodes, a three-month wait for commencement of assessment could cause unbearable suffering, both for the person involved and his or her family. In some cases such a delay could prove to be life threatening. Depressive illness is treatable but in cases where severe depressive illnesses remain untreated or are treated inadequately, they can prove to be fatal. In 2003, 444 people ended their own lives. Experts suggest that 80% to 90% of suicides can be traced back to depression. This means that in 2003 approximately 350 people lost their lives to an illness that could have been treated. Aware is concerned about this important factor and wants it to be included in the provisions of the Bill.
I am interested to hear what the Minister of State has to say about this matter and how his amendment could dovetail into mine.
The definition of disability in section 2 is modelled on the definition in the National Disability Authority Act 1999. It has been modified slightly to keep the focus on the positive action nature of the Bill. It is further defined in section 6(2) for the purposes of Part 2 of the Bill relating to the new assessment of need, services and redress provisions to allow the effective targeting of resources where they are most needed.
I have taken seriously the concerns expressed by a number of Deputies, the DLCG and others, that some groups might be excluded from accessing assessments and services in Part 2. The groups about which concerns have been raised are persons with episodic conditions, particularly those with mental health impairments, sensory impairments, and children requiring early intervention services. I am not convinced that some of these concerns are justified.
I have had this matter examined from a legal perspective and in terms of its implementation by the Department of Health and Children. Arising from these consultations I am advised that the definition, as used in Part 2, does in fact encompass episodic conditions and sensory impairments, as appropriate. However, for the avoidance of doubt, Government amendment No. 50 provides for an expansion of the definition to give greater clarity about the inclusion of persons with mental health impairments and children requiring early intervention services. I hope the new text in amendment No. 50 will address the concerns of interest groups and, indeed, of many Members of the House as they have been represented to me.
Opposition amendment No. 48 seeks to create a new category of disability for assessment purposes — i.e., those with urgent conditions suggesting the need for speedier assessment and services. It is not clear what criteria would be used to determine the urgency. This term would be open to wide interpretation and would not enhance the provisions. I do not propose to accept the amendment.
Like the Minister of State, I am concerned about who exactly would make the diagnosis or who would define what condition is chronic, and how it would come under the terms of the Bill. Most clinicians are acutely aware of the roles of their particular practices and whether or not such issues would be covered by insurance. I am not certain, however, that any of them take the time to read up on legislation. I am worried by the definition. The wording of the Minister's amendment No. 50, however, suggests that the Minister of the day will be guided by experts in the area. Does that not leave it to chance because it is based on opinion without being nailed down? I have significant concerns about that.
Under section 7(7), the assessment officer shall set out the findings and will have regard to his judgment or that of medical experts in determining whether the applicant has a disability. That is adequately provided for in the legislation.
That is an improvement. Is Deputy Stanton withdrawing the amendment?
It is an improvement but I am concerned about cases where urgent action is required. There is a three-month wait before an assessment must be carried out. I instanced someone who is severely depressed who should not be left to wait for an assessment. Does the Bill provide for the assessment officer to move immediately in an emergency? The Minister of State referred to schizophrenia, which is chronic and urgent, and I mentioned various forms of depression, which can be chronic and urgent and might require an immediate response from the assessment officer and service providers. It must be left to the professionals to decide what is urgent. For instance, a general practitioner could often decide what is urgent and call in the assessment officer immediately to provide a service.
Is depression a medical condition that must be addressed immediately and not necessarily under disability legislation?
I agree with the Minister of State that, at the end of the day, if someone suffers from a chronic condition, he or she must be dealt with quickly. If, for example, the person is violent and if no service is available, will it be too easy for someone to say it is a job for the assessment officer and to contact the Health Service Executive? If this provision is not strengthened, there could be a difficulty and I worry about that.
The legislation provides that the assessment must commence within three months but it could commence much more quickly. Section 20 deals with regulations and it provides for applications for assessments and the procedure for such assessments, including the different periods within which an assessment is to be carried out or subsequently reviewed and the difference in such periods in respect of the various categories of disability or persons of different ages. The assessment officer, therefore, has significant flexibility. In the case of early intervention with young children, the officer has the ability to move quickly, if necessary, and review the case on an ongoing basis. The implementation will be outlined in the regulations. They will also cover the issues we are addressing. However, there will be enough scope in the regulations to provide the flexibility sought by the members.
Amendment, by leave, withdrawn.
Amendment No. 49 is out of order.
It is related to amendments Nos. 7 and 8 and it seeks to widen the definition of "disability". The effect would be to include people in the application of the Bill who would not otherwise be included and entitle them to services outlined in the Bill. This has a cost implication for the provision of services and the amendment, therefore, has the potential to raise a charge on the Revenue.
Amendment No. 49 not moved.
I move amendment No. 50:
In page 10, subsection (2), lines 9 to 13, to delete all words from and including "construed," in line 9 down to and including "continually." in lines 12 and 13 and substitute the following:
"construed for the purposes of this Part as meaning a restriction which—
(a) is permanent or likely to be permanent, results in a significant difficulty in communication, learning or mobility or in significantly disordered cognitive processes, and
(b) gives rise to the need for services to be provided continually to the person whether or not a child or, if the person is a child, to the need for services to be provided early in life to ameliorate the disability.”.
The word "continually" is used and this is different from the word "continuously". Continually means something happens on and off and does not happen all the time, while continuously refers to something needed all the time. That is the word people want inserted. The word "continually" is correct. It is important to have the meaning right. The service will be provided as required, rather than all the time.
The reference to the need for services to be provided continually as opposed to continuously covers persons with episodic conditions who will have an intermittent need. Sensory disabilities such as blindness or deafness are likely to be permanent and result in communication difficulties and they are, therefore, covered by the current text.
The section refers to "a restriction which is permanent or likely to be permanent". People may have an impairment, for example, multiple sclerosis, where they go through periods during which they feel well and others when they do not. However, while the restriction is not permanent, the disease is and this issue of permanency may need to be re-examined. It could cause a problem because an impairment may come and go and may not be permanent. The section states it must be "permanent and the service provided continually". If "and" was substituted by "or", episodic conditions would be better provided for, which is the Minister of State's intention. However, a restriction "which is permanent or likely to be permanent" could negate what he is striving for, which is the continual provision of services.
There is a contradiction in the section between episodic and permanent conditions. I agree with the provision of services continually, which is excellent, but I am not sure about the demand that the restriction should be permanent. The legislation does not demand that the ailment should be present. Some people could have an illness such as multiple sclerosis, which can come and go. They can go into remission. However, the use of the terms "permanent or likely to be permanent" means a person must be restricted all the time. For example, chronic depression can come and go. It appears to contradict the second part which is a continual provision of services. People need to get the services as they require them. People could have periods of being well and of being in great pain. Perhaps the Minister of State will examine that phrase to see if it could be softened a little.
If I may give an example of MS. A person who has MS may not be aware of the condition. It is only when the condition impacts on one's ability to work or participate in social life that one is recognised as being disabled.
A considerable amount of expert advice was sought on the mental health aspect. This advice stated that the original intention in regard to mental health disabilities and the Disability Bill was that its provisions would extend to persons with severe and enduring mental illnesses only. The principal diagnostic categories generally regarded as severe and enduring are schizophrenia, treatment resistant depression and severe bipolar disorder, also known as manic depression. The defining characteristics of these illnesses is that they are long term in nature and full recovery is uncommon. Less severe mental health conditions such as mild or moderate clinical depression and anxiety disorders, from which recovery is usual within a relatively short timeframe, would not come within the compass of the Bill, nor was it ever intended to be the case. There is a clear distinction between the major mental illnesses, such as those I mentioned, and the less significant illnesses.
In respect of episodic illnesses, the experts state that essentially it is not the issue of diagnosis in itself that is important, but rather the primary disabling effects of the condition that give rise to the use of and need for specialised health services. These areas are covered in the definition. After examining this aspect and speaking with the medical experts and so on, we are satisfied that the definition encompasses all these areas.
I thank the Minister of State for that clarification, which is extremely useful. People will be pleased to hear that.
To return to the word "permanent", the Minister of State used the word "long-term", which is better. Unfortunately, while one may not be aware they have MS, they may suffer at some stage from severe incapacity as a result of the disease. They may then go into remission for some time but the disease may recur again. In that regard, the restriction is not permanent or likely to be permanent, but it could be long term. I ask the Minister of State to reconsider the use of the word "permanent". Perhaps he will come back on Report Stage and decide to use the word "long-term" rather than the definite word "permanent".
The definition in the Social Welfare Bill is "foreseeable future" in regard to disability.
The important distinction is that it is the illness that is permanent, not the impact of the illness. Therefore, a person could be in remission, which could be described as an episodic nature. That person is covered because he or she has an illness. That illness is permanent, even though the diagnosis at any time may not be that the person is suffering at a particular time. However, the person has the illness, therefore, he or she is covered by the legislation.
Once the diagnosis is made.
It may not be a restriction.
The legislation states it is the restriction which is permanent.
I am talking about what is permanent or likely to be permanent. I am trying to explain that it is the illness that is permanent.
That is not what the Bill states. It refers to a restriction which is permanent; it does not say illness.
These conditions are permanent or likely to be permanent. There may be an episodic nature to these illnesses but they still come within the definition of the legislation.
If one is in remission, one may not suffer from any restrictions.
Is the Minister of State saying that it does not matter once one has the diagnosis?
Should we include in the legislation "restriction or diagnosis of the illness"?
I think that is what the Minister of State is saying.
One must take into account the remainder of the amendment which includes the words, "results in a significant difficulty in communication, learning or mobility or in significantly disordered cognitive processes".
This is where the difficulty arises.
A person may not have these conditions if he or she is in remission. The difficulty here is that the restriction must be permanent or likely to be permanent. For someone with an episodic illness, the illness is permanent but the restriction may not be permanent. The person may have no problem at times with communication, learning or mobility or in significantly disordered cognitive processes, but the illness can manifest again in an impairment of some sort that restricts communication, learning or mobility. The problem is the word "permanent". The restriction is causing the resulting difficulty to which the Minister referred. The word "permanent" should be omitted and, as Deputy Lynch said, the words "foreseeable future" or something to that effect could be included.
The word "restriction" could be changed.
The word "restriction" could be changed to "diagnosed illness". There is a tightness in the wording which must be examined.
Will the Minister consider it before Report Stage?
I cannot examine it because we have widened the definition to a significant level. We have gone much further than the original intention.
We are not asking the Minister of State to include people who are not included at present, nor are we asking him to widen the definition. This is about people who may have an episodic diagnosis. However, there are people with MS who never go into remission. Rather than these people having to flit in and out of the system, even at times when the diagnosis does not restrict them, they should still be covered by the legislation. This is not about providing cover for people who do not have it already. They have it, but from time to time they may not physically have the symptoms or appear to have the symptoms.
Is it the case that a service is given to someone with MS, they are in remission, but they are not entitled to anything because there is no restriction on them, yet they are already getting a service?
It is not about broadening the definition.
They either have MS or they do not.
That is the point. The word "restriction" could be replaced by "diagnosis".
It is a permanent restriction which may not always manifest itself. It is covered in the legislation. We went into significant detail to ensure we got this right.
People in remission may not, and probably will not, have a significant difficulty in communication, learning and mobility or a significantly disordered cognitive process. They could be as well as any of us. When they are in remission, it is not permanent. The restriction is unlikely to be permanent because it comes and goes.
Once it comes, it is a condition that is accepted as permanent or likely to be permanent. It is covered, even if the person is in remission.
They do not have a restriction then.
This amendment could deal with the difficulty.
We are almost there. There is just one word missing.
There is no intention on anybody's part to widen it.
The effect of the Deputy's suggestion would be to widen it considerably and to bring in a significant number of extra people.
That is the reason we are asking the Minister of State to consider it for Report Stage. He may decide then he cannot do it, but he will have considered it.
I assure Deputies that this is one of the areas that has been looked at more than any other. We are quite satisfied that we have adequately covered the requirements put before us. It is accepted that is the case. Unless there is some significant issue left out, I do not propose to change this.
Why is it necessary to have the phrase "is permanent or likely to be permanent" included? Could it not read, for the purposes of this Part, as meaning a restriction which results in significant difficulty in communication, etc.? Why was the phrase put in at all, it seems almost——
If we accept what is provided for in the Bill people in remission might be excluded because they do not have a restriction.
We are all agreed on this.
Perhaps the Minister of State will consider putting down an amendment on Report Stage. The matter has been well debated, which will be reflected in the Official Report. Perhaps everybody can have a look at it again on Report Stage.
I do not think it is possible. The matter has been looked at and examined carefully. If, for example, we take the suggestion made by Deputy Stanton to leave out the words, "permanent or likely to be permanent", we could have a man who broke his leg on a football field being entitled for the period he has a plaster cast on his leg to become entitled under the definition. I assure the Deputies we have considered the matter carefully and it has been examined by medical experts. We have come down in favour of this definition and it will not be possible to change it.
The matter has been well debated. Is the amendment agreed?
We intend to return to it on Report Stage.
Is the amendment agreed for now?
Amendment put and declared carried.
I move amendment No. 51:
In page 10, subsection (3)(a), line 17, to delete “health boards” and substitute “the Executive”.
Amendment agreed to.
I move amendment No. 52:
In page 10, subsection (3)(b), line 19, to delete “health boards” and substitute “the Executive”.
Amendment agreed to.
I move amendment No. 53:
In page 10, subsection (3)(c), line 25, to delete “health boards” and substitute “Executive”.
Amendment agreed to.
I move amendment No. 54:
In page 10, between lines 29 and 30, to insert the following subsection:
"(4) References in this Part to the appeals board shall be construed as references to the appeals board with, in addition to the functions conferred by the Act of 2004, the function of hearing and determining an appeal under section 10(5).”.
Amendment agreed to.
Section 6, as amended, agreed to.
I move amendment No. 55:
In page 10, subsection (1), lines 30 and 31, to delete all words from and including "chief" in line 30 down to and including "she" in line 31 and substitute the following:
"Executive shall authorise such and so many of its employees as it".
Amendment agreed to.
Amendments Nos. 56 to 58, inclusive, have been ruled out of order.
I understand the issue of the charge on the public purse, but how could amendment No. 57 be out of order when it merely seeks to delete the words "officers of the board" and substitute "independent persons"? I assume independent persons would be paid the same as we would pay the officers of the board and also that if people from the board or the executive were appointed to this task, we would have to employ someone to do their original job. How, therefore, does this amendment involve an additional charge on the public purse?
The explanation that has been provided is that the Deputy proposes that the assessment officers appointed by the CEO be independent rather than officers of the board. This could mean the recruitment of additional staff or the retaining of consultants. Therefore, it has an obvious cost implication and has the potential to raise a charge on Revenue.
If one goes along with the Bill which says they must be officers of the board or the Health Service Executive, will they be asked to do this work in addition to what they already do? If not and we mean it is such an important job that they will give up their other work to do this job, we will have to employ others to do their current job. How then would this amendment impose an additional cost? I do not understand how it can be considered such.
If one is looking for independent people, they are not officers of the board but additional people. That involves an extra cost.
The board will have to employ people to take the place of the people doing the job within the board, which is also a cost.
That is one argument. The Deputy may raise the issue later in the section.
Amendments Nos. 56 to 58, inclusive, not moved.
I move amendment No. 59:
In page 10, subsection (1), line 35, to delete "chief executive officer concerned" and substitute "Executive".
Amendment agreed to.
Amendment No. 60 not moved.
I move amendment No. 61:
In page 10, subsection (2), lines 38 and 39, to delete "officers of the health board concerned" and substitute "employees of the Executive".
Amendment agreed to.
I move amendment No. 62:
In page 10, subsection (2), line 39, after "experience" to insert the following:
"and expertise as he or she considers appropriate; those persons may include one or more of the following:
(a) a psychologist;
(b) a medical practitioner;
(c) a therapist or therapists who is/are suitably qualified to provide support services in respect of the person with a disability;
(d) an appropriately qualified social worker;
in order to best identify the person's rehabilitation, vocational, independent living, educational, emotional and personal needs".
I came across this proposal in the Education for Persons with Special Educational Needs Bill. The suggestion is the use of a team approach. The amended section 7(2) would read:
An assessment officer shall carry out assessments of applicants or arrange for their carrying out by employees of the Executive or by other persons with appropriate experience and expertise as he our she considers appropriate; those persons may include one or more of the following:
(a) a psychologist;
(b) a medical practitioner;
(c) a therapist or therapists who is/are suitably qualified to provide support services in respect of the person with a disability;
(d) an appropriately qualified social worker; in order to best identify the person’s rehabilitation, vocational, independent living, educational, emotional and personal needs.
As the Chairman is aware, a number of groups made this suggestion to the committee. Headway Ireland maintains that assessments should be carried out by an interdisciplinary team with specialist expertise to allow for a correct assessment. This team should be independent of the health boards. The Minister of State has already pointed out that the assessment officer will be independent.
The National Council on Ageing and Older People maintains that a standardised comprehensive approach to assessing the medical, social, psychological and financial circumstances of people should be taken into account, and also the person's needs preferences and abilities. In addition, Children in Hospital Ireland made an interesting point. It maintains that the Bill should specify that only staff whose training skills enable them to respond to the physical, emotional and developmental needs of children in families should conduct assessments and prepare service plans. Those conducting assessments must have training in consultation with an inclusion of the children in the care in the assessment process.
NAMHI has said that the position of the assessment officer is crucial. These officers must be persons of the highest calibre with experience of people with disabilities and their families. It maintains there is no indication in the Bill of the type of persons that will be appointed as assessment officers. Brainwave is concerned as to whether there are sufficient suitably trained personnel to deliver service statements and carry out assessments.
We need clarification on this matter. Who will be appointed as assessment officers? Are they already in the system or will they be recruited, like the SENOs in the Department of Education and Science? Will they be able to adopt a team approach as outlined here? The issue of team meetings is important because the person with a disability may have multiple needs and a multifaceted assessment may be required. My amendment proposes the assessment officer has the resources to draw on a team approach.
I support Deputy Stanton's amendment. Most community welfare officers of my acquaintance are very decent people and they do an excellent job sometimes under very trying conditions. It will require a degree of expertise and understanding to deal with the holistic needs of someone with a disability. People with disabilities are as complex as the rest of us. A person may have mobility difficulties and also be mentally challenged and a range of expertise is therefore needed. The provision of that service may need to be considered in an imaginative way. It may be necessary to provide a service which the person had not considered before in order to make their life easier or ensure the person can fully participate in society as does everyone else. It is very important to have the right person acting as the assessment officer.
The Minister of State stated that the HSE is working to put together the necessary tools in order to implement this legislation and I am aware of the importance of the sectoral plans. This is a key area which will take a great deal of time unless it has already been commenced. Has the Minister of State any information from the HSE sections as to whom they have in mind for this job? It will be a key job which will require a person with excellent interpersonal skills so that they are not regarded by the person in need of the service as threatening, biased or the company person. Will it be a multidisciplinary team?
The details requested by both Deputies will be provided by the HSE. It is charged with the responsibility of putting the regulations together. These regulations will spell out the procedure for assessment.
The amendment proposes to set out the kinds of professional expertise to be used by the HSE for the purpose of assessment. The question of specifying this kind of detail in the body of the Bill was considered at drafting stage. In view of the wide range of different kinds of disability coming within the scope of the section and the variety of different expertise required overall, it was decided preferable to provide in regulations for such detail.
Section 9 deals with standards and subsections (20)(a)(iii) and (20)(a)(iv) allow the Minister for Health and Children to specify the categories of skills and expertise required to carry out the assessment. These subsections describe the categories of skills and expertise required to carry out an assessment, matters relating to the determination and approval of standards to be applied in respect of the carrying out of the assessment. For this reason I refer to what the HSE may decide in the context of the roll-out of the regulations. This is a more flexible and appropriate way of dealing with the issue rather than inserting it into the Bill. I propose to reject the amendment on that basis.
Amendment, by leave, withdrawn.
I move amendment No. 63:
In page 10, subsection (3), line 42, to delete "may" and substitute "shall, as soon as may be,".
This amendment will strengthen the liaison process between the assessment officer and the National Council for Special Education which is charged under the Bill with supporting the assessment officer in making the assessment when an education service is likely to be necessary. The Bill as published allows for the assessment officer to approach the council to seek educational expertise for the assessment process. The amendment will now place a positive obligation on the assessment officer to approach the council for an input when he or she considers an applicant has a need for educational services. I am happy to propose the amendment, which was suggested by the National Disability Authority in its submission on the Bill.
Amendment agreed to.
Amendment No. 64 is out of order.
Amendment No. 64 is virtually the same as amendment No. 63. If it is out of order, why is the Minister of State's amendment No. 63, not out of order?
The Minister of State has the prerogative in this regard.
I am pleased with his amendment but I would be happier if he said the proposal in amendment No. 64 was dealt with under amendment No. 63. I do not agree that amendment No. 64 is out of order.
I was hoping the Deputy would not use that reply.
Amendment No. 64 not moved.
I move amendment No. 65:
In page 10, subsection (3), line 45, after "request" to insert "without undue delay".
I wish to emphasise the phrase "without undue delay" which gives teeth to the legislation.
I am prepared to consider the amendment.
I will withdraw the amendment if the Minister of State is prepared to consider it.
Amendment, by leave, withdrawn.
I move amendment No. 66:
In page 11, subsection (6), lines 8 and 9, to delete all words from and including "chief" in line 8 down to and including "appropriate," in line 9 and substitute the following:
"Executive, and, if appropriate, a person referred to in section 8(2) and”.
Amendment agreed to.
Amendments Nos. 67 to 69, inclusive are out of order.
Amendments Nos. 67 to 69, inclusive, not moved.
Amendments Nos. 72 to 78, inclusive, and amendments Nos. 80 and 81, are related to amendment No. 70, therefore, amendments Nos. 70, 72 to 78, inclusive, and amendments Nos. 80 and 81 may be discussed together by agreement.
I move amendment No. 70:
In page 11, subsection (7)(b)(iii), lines 21 to 26, to delete all words from and including “considered” in line 21 down to and including “provision” in line 26 and substitute the following:
"listed in order of importance, which are considered appropriate by the person or persons referred to in subsection (2) to meet the needs of the applicant and the period of time required by the person or persons for the provision of each of those services and the order of such provision, giving preference to services which are most needed by the applicant”.
A number of groups have suggested there is no link between the assessment report prepared without regard to cost of, or the capacity to provide, a service identified as being appropriate to meet the needs of the person, and the subsequent service statement specifying the health services or education to be provided. As it stands, people may never receive certain services outlined in their assessment report. The alternative would be for the assessment report to list the services required in order of importance and the timeframes for accommodating the needs. It should be feasible to work out what would be possible and make provision for an annual review. This is the view of NAMHI. An assessment statement could be brought forward and the person's hopes could be raised but it might be a long time before the services are provided. This must be borne in mind because we are dealing with vulnerable people who are suffering.
When making its observations on the Bill, the Irish Human Rights Commission stated:
In the view of the IHRC the use of the term "ideally" implies a distinction between services ideally required and services realistically required and implies that services ideally required will not be delivered in practice. When the ideal is itself required by human rights law then there can be no excuse for its non-provision except as allowed under human rights law. This goes to the very heart of the issue of what constitutes a rights-based approach. The IHRC strongly believes that the Bill should refer unambiguously to services required as of right.
AHEAD maintains that:
The Bill establishes a rather complicated procedure from application to assessment to the receipt of a service statement. The assessment is to be carried out by an assessment officer ... or cause others with appropriate experience to do so. Cost or the capacity to provide a service is not to be considered in the assessment [we agree with that]. Therefore the assessment actually assesses the requirements of the individual. This is the only accurate statement of a persons needs in the entire Bill, and this should form the basis of the service.
As we have just started to debate this issue and will not be able to complete it quickly, perhaps it might be an appropriate time to take a break.
Sitting suspended at 4.05 p.m. and resumed at 4.20 p.m.
Amendments Nos. 70, 72 to 78, inclusive, 80 and 81 are being discussed together.
There is a need in the statement to list in order of importance the services which will be considered appropriate by the person or persons mentioned to meet the needs of the applicant. Amendment No. 70 is self explanatory.
Amendment No. 72 seeks to ensure that an assessment officer "shall" rather than "may" for the purpose of carrying out an assessment invite the applicant, thereby strengthening the provision. Amendment No. 73 seeks to insert on page 11, section 8(a), line 31, after the word “appropriate” to insert “or if the applicant so requests”. The assessment process must include the person with disability and their family to ensure that needs and subsequent services can be correctly identified. This is required if we are to comply with the basic principle that people with disabilities should be at the centre of all decisions made about them.
Amendment No. 76 seeks in page 11, subsection (8)(b), line 40, to delete “unless” and substitute “or, if present, the person referred to in section 8(2) if it is”. What principles and criteria will guide the assessment process and to what extent will it engage with the needs and views of those caring for disabled persons? We want to know to what extent the resulting service statements will incorporate the views of the disabled adults whose needs are being assessed. How will the new assessment framework be integrated with existing systems of assessment and referral? What subgroups of the population will fall between stools and find themselves in no man’s land while remaining on waiting lists for assessments?
Amendment No. 77 seeks to provide that the assessment officer shall ensure that a person or persons carrying out a assessment communicates with the applicant in a manner which facilitates appropriate participation by him or her in the assessment and promotes dialogue about its nature. It is an important provision.
Amendment No. 78 seeks in page 11, subsection (8)(c)(i), line 48, before “in” to insert “and/or the person referred to in section 8(2)”. In any assessment process pertaining to people with dementia, the needs of the primary carer must be taken into account. It is especially the case in dementia care that the care partnership is crucial and that the two partners have a range of needs which must be met. The health and well-being of a person with dementia is directly linked to the health and well-being of the primary carer. The Alzheimer Society of Ireland is especially interested in having provisions in this regard implemented. Those conducting assessments must include training, consultation with and inclusion of the children and their carers in the assessment process. It must be specified that all personnel, especially the access officers who come into contact with children with disabilities, who provide assistance, treatment or other services are knowledgeable and skilled in communicating and interacting with children with disabilities or special needs.
Amendment No. 81 seeks in page 12, subsection (8)(c), between lines 8 and 9, to insert “(iii) ensure that a person referred to in section 8(2) is given adequate information relating to the process of the assessment and the results of the assessment, if the applicant has not been provided with such as under subsection (8)(c)(ii).”. The person with a disability and his or her chosen advocate should be involved in the development of the service statement and the related process of prioritising services which can be provided immediately or over time.
I assume amendment No. 72, which is in the names of virtually all Opposition Deputies, will be accepted to tidy up the provisions of section 7. Amendment No. 74 seeks in page 11, subsection (8)(a), line 32, to delete “attend before him or her for interview” and substitute “meet with him or her”.
The amendment focuses on language because the language of a Bill can sometimes tell us a great deal. To demand that someone should attend "before" the assessment officer for interview, sets a particular bureaucratic tone and defines the attitude of the legislation rather than the aims of the provision. That a demand is being made that people should attend "before" an assessment officer tells us a great deal about the attitude of the person who drafted the Bill. Surely, the Bill should request that the person with a disability would "meet with" the assessment officer to discuss his or her needs. I am worried by the attitude demonstrated by the language of the section, which establishes the bureaucratic nature of the system. It is as if someone who did not like children had written a child care policy.
The language is cold, clinical and driven by bureaucracy and I ask that it be changed. While it will probably make very little difference to the person going for interview or to the attitude of the person interviewing them, changing the language will make a difference in the way the State addresses people and deals with them as individuals. We must recognise that we are dealing with individuals and accord them the respect they deserve.
I have tabled my five amendments because the way language is used in the Bill is very important. My amendments seek to strengthen the Bill, provide it with teeth in the provision of services, reduce bureaucracy and ensure a strong respect for people's rights.
I listened with interest to the comments of the three Deputies on important issues relating to the participation of applicants in the assessment process. It is an important topic and there is an obligation on us all to achieve the correct balance. The detailed provisions of section 7(7) and section 7(8) seek to strike that balance and were prepared in light of proposals made during the consultation process with the advice of the Department of Health and Children.
Amendment No. 70 seeks to require assessment reports to contain a priority list of services. The principle of the Bill is that the report will set out all the required services and indicate the order of provision and optimal timescales for delivery. As I am not convinced the proposals in amendment No. 70 would improve arrangements for assessments and service delivery, I do not propose to accept it.
Amendment No. 72 would require an assessment officer to carry out an interview in all cases. It is desirable that some discretion over procedures remain with the assessment officer in order that the individual circumstances in each case can be considered. I disagree with Deputy Lynch's point in respect of amendment No. 72 because it may not be necessary for the applicant to meet the assessment officer. The deletion of the word "may" would remove a degree of flexibility in such circumstances which would not be in the best interests of applicants. I will address this issue in greater detail if the Deputy wishes. Although I accept her point regarding language, the insertion of the word "shall" would introduce a requirement for every applicant to appear before an assessment officer, which may not be necessary.
Amendments Nos. 73, 76, 78 and 81 deal with procedures for assessment, including the involvement of an applicant's representative. Where a person makes an application on behalf of a person with a disability, I expect this person would be involved in the assessment process. Such a person is entitled to attend the interview with the applicant under section 7(8)(a). I have already moved an amendment to ensure representatives receive copies of assessment reports under section 7(6). Given that variations will arise in individual circumstances, assessment officers should have some flexibility with regard to procedures. Nevertheless, I have some sympathy with the proposal in amendment No. 73 and intend to review the matter in consultation with the Minister for Health and Children.
Amendment No. 74 refers to the procedures for interviews. Its purpose is to change the language of the subsection so that assessment officers would meet the applicant rather than ask the applicant to attend for interview. Although the language is less formal, the effect is the same. The question arises as to whether the proposed informal language would tend to diminish the perceived or actual status of the event. I am open-minded on this topic and wish to hear further from colleagues as to the merit or otherwise of the change of language in the amendment.
Amendments Nos. 75 and 80 relate to the procedures for assessment interviews and propose to remove a provision designed to cater for the assessment of a small number of individuals. The provision in the Bill, as published, allows for assessment officer discretion in deciding if the applicant should be told the purpose of the assessment interview or other information relating to the assessment. This takes account of circumstances in which particular sensitivity may be required, for example, in the case of someone with a severe intellectual disability or a child for whom potentially disturbing information or prognosis falls to be given. Such circumstances need to be judged on an individual basis by an assessment officer. I find no advantage in removing the provision and consider there is potential for damage if the assessment officer does not have a legal basis for dealing sensitively with vulnerable applicants. In the circumstances, I do not propose to accept the amendment.
Amendment No. 77 relates to the duty of the assessment officer to facilitate in communication participation and dialogue in the assessment process. The provision requires the assessment officer to endeavour to ensure such participation takes place. The amendment would oblige the assessment officer to ensure this type of involvement by the applicant and would effectively leave the assessment officer responsible for the communication of other people involved in the assessment process. This is not a reasonable approach. Section 9 provides for standards to apply to the assessment process and places the responsibility on the agency to ensure they are applied. As the issues involved are adequately covered by section 9, I do not propose to accept the amendment.
While I accept the points made by Deputies, the balance reached in the Bill, the subject of considerable discussion, should not be tampered with because it is adequate to give the kind of flexibility required.
I am not asking the Minister of State to alter the balance of the Bill. He and I know that when the wording of the letter calling an applicant for interview or assessment will have a strong bearing on how the person in question will arrive at the interview or assessment. An aggressively worded letter and a simple invitation to attend a meeting to discuss needs are different. Some applicants will be angry while others will be meek and unable to put their case properly. For this reason, the wording of the letter will have an impact on the recipient. My proposal would not alter the balance one whit but remove the possibility that different invitations will send out different signals. A person may be asked to attend for interview but words could also be used to the effect that the interviewer would appreciate if the applicant would attend for interview to discuss his or her needs. Each approach sends out an entirely different message, even though the fundamental message of both is the same. The amendment concerns language only and would not alter the balance of the Bill.
The assessment officer is not required to use the language provided in the Bill, which is simply designed to communicate the principles involved. The detail of the language used to communicate with clientele is a matter for assessment officers.
The message in the Bill will probably have a greater impact than the Minister of State believes. Once appointed, assessment officers will read the legislation to determine what are their duties under the Act.
Their duties will be outlined in the regulations.
Yes, but they will also read the legislation, as they should. The amendments propose changes in language only.
Deputy Lynch makes an important point. Amendment No. 72 raises another important issue regarding the type of assessment officer appointed, a matter the select committee will discuss in greater detail later. It is important in terms of experience and approach that assessment officers are sensitive, high calibre individuals who know and understand the issue of disability.
The Minister of State noted in regard to amendment No. 72 that applicants will not be required to attend a meeting or an interview in certain circumstances. To what type of circumstances was he referring? In my experience, it is important, particularly in the cases of adults or children with severe intellectual and physical disabilities, that assessment officers receive a written report on and meet in person the individuals in question. This enables them to realise the trauma involved and the amount of work required to assist persons with severe disabilities.
The word "disability" covers a broad spectrum of conditions. Many children with disabiities have a good quality of life and do not require major attention, whereas other people with certain conditions require much greater attention. It would open the eyes of the assessment officers to see what the real world is like 24 hours per day.
While I accept the Minister of State's point that the legislation must be balanced, assessment officers must be professional, sensitive and caring people. I am optimistic that those recruited will be of a high calibre.
The Minister of State appeared to indicate that the services considered appropriate will be listed in order of importance. Is this the case? It is accepted that the required services will not come on stream simultaneously. Will provision be made by way of the legislation or regulation to prioritise supports in the event that an assessment of a person's needs concludes that a number of different supports are required? The thrust of amendment No. 70 is to ensure the services a person needs most are provided first.
Will there be a statement of the outstanding needs of a person which cannot be met at the time? Following an assessment, a statement of services required is produced. In terms of the work of a liaison officer, when he or she finds that many of the services cannot be provided, how will that be factored in and how will they be provided at a later stage? Is there provision for this in the legislation?
I take the Minister of State's point about amendment No. 72. I welcome the fact that he will look again at No. 73, which would mean that the applicant could request something. The role of carers and family members is crucial and it is important that they would be recognised and given certain rights, especially in cases where the judgment of a person with a disability may be impaired.
The wording, "attend before him or her for an interview" is very strong. It is almost confrontational. I would appreciate if there were some way this could be attenuated.
I presume an assessment officer would use his or her own language when sending out notice of a meeting. They would not use jargon like that.
Except that sometimes people send out letters, for example, referring to section 7(8)(a), stating that one is invited to attend for an interview.
There is sometimes a tendency to use this terminology but that may not be the case.
People can use discretion.
The Minister of State invited comments on this issue.
I will definitely review it in view of the fact that all speakers are in agreement on it. Regarding what Deputy Stanton said, section 7(7)(b)(iii) gives the answer to the question he raised.
On the point made by Deputy Finian McGrath, if we take the case of a young adult with a significant physical and intellectual disability, the possibility of that person having to attend a meeting because of the inclusion of "shall" would not make any sense.
Deputy Finian McGrath also stated that assessment officers would need to be aware of the circumstances in each case. I would expect that the first requirement of assessment officers would be for them to be fully familiar with the range of disabilities, the type of people involved and their situations at the time. That would be essential for an assessment officer. We should not worry that assessment officers would be aloof from their clients. In the case of a person who would be confined to an institution, let us say for example, the Pope John Paul centre in Galway, I would not envisage such a person who may have a significant physical and mental disability having to go before an assessment officer.
Does the Minister of State not envisage the assessment officer going out on-site to meet with clients in their homes or in a care institutions?
By all means, if necessary.
From my experience, although there has been a great deal of progress in recent years in services for people with disabilities, there are also many aspects of the disability sector that the public and even people who work in this area do not understand. I thought I knew a great deal about disabilities, especially Down's syndrome, but when I visited families of adults with autism I saw sad and difficult situations. I saw an aspect of the disability sector of which I was previously unaware. Assessment officers might think they know all about this area but that is not always the case. I would encourage assessment officers to visit people in their own environment to make their assessments rather than to bring families into a formal meeting.
I accept that it would be a prerequisite.
Amendment, by leave, withdrawn.
Amendments Nos. 127 and 220 are related to amendment No. 71. Amendment No. 221 is an alternative to No. 220. Amendments Nos. 71, 127, 220 and 221 will be taken together, by agreement. Is that agreed? Agreed.
I move amendment No. 71:
In page 11, subsection (7)(b), to delete lines 27 and 28 and substitute the following:
"(iv) a statement of outstanding needs of the person, which can not currently be met by the services provided,
(v) a statement of the date by which continuous reviews of the assessment should be carried out, within a period not exceeding 12 months from the date of the previous assessment, or whenever there is a change in circumstances or condition either for the person being assessed or in available resources.".
We have addressed this matter to some extent. The crucial wording here is "a change in circumstances or condition". There may be a need for services and supports resulting from assessment to be reviewed annually and to be implemented within a specified timeframe. There is a gap between the need defined in the assessment of needs and the services ultimately included in the service statement which could lead to needs not being met. More emphasis should be placed on providing practical, appropriate and sufficient services to ensure that fundamental needs are met.
I understand that the provision of the entire range of required services may be phased in to take account of available funding and professionals. If that is the case, it is important that a record is kept of the needs that can be immediately met and those that will be met over time. The assessment of needs, the service statement and the outstanding needs should be reviewed annually and whenever there is a change in circumstances of the person being assessed or in available resources. We need to ensure that once the assessment is carried out that that is not the end of it, that there would be a review on a continuous basis, especially if all the needs are not met initially.
Many people who have spoken to us referred to the progressive realisation of needs, especially if people's conditions or circumstances change, as can happen when people are unwell. At present, many services for people with disabilities are available on a limited basis. These include, independent and supported living, assisted technologies and supported employment services.
As I understand it, the Bill is confined to the areas of health and education. Is it the case that an assessment would only cover two facets of an individual's needs, namely, health and education? Will the Minister of State clarify this issue as it is important? I welcome the fact that an assessment will be carried out without regard to the cost of, or the capacity to provide, any service identified. Will the assessment be holistic or will it confine itself to health and educational needs? It is important that we would know that at this stage.
The outcome of an assessment is unpredictable because it is based on the available budget of a particular Health Service Executive area at a given time. That is a cause of concern to some people. Is the assessment limited to the areas of health and educational needs? If the outstanding needs of a person cannot be met by existing services, how will they be addressed over time?
Timescales are important. There must be a reference to the period of time by which continuous reviews of the assessment should be carried out. I suggested a period not exceeding 12 months from the date of the previous assessment, or whenever there is a change in circumstances or condition. If there is a change in a person's condition, can he or she seek another assessment or a review of the assessment to take into account that change? These are important points which I hope the Minister of State will address.
Amendments Nos. 127 and 220 are in the name of the Minister.
The legislation provides both for further assessments and for a review of the service statement. Section 7(7)(b)(iv) specifies that each assessment report will set out the period within which the review of the assessment will take place. Section 8(8) also allows an applicant to initiate a further assessment in certain circumstances. Following consultations with the Disability Legislation Consultation Group early last year, the Government decided to expand the legislative proposals then in preparation to encompass a review of each individual service statement at suitable intervals.
In response to calls for greater clarity in this regard, both in the Dáil on Second Stage and in the submissions received, I tabled amendments Nos. 127 and 220. These amendments specify clearly that there must be a review of the services being provided as a result of the service statement. Details of arrangements of this process will be set out in regulations under section 20. I hope these changes go some way to meeting the concerns expressed in amendments Nos. 71, 121 and 221 and the issues they are seeking to address.
The issue raised by Deputy Stanton is dealt with in paragraphs (a), (b) and (c) of section 7(8). There is flexibility to address the issue. The assessment is meant to be holistic. Personal social services under the Department of Health and Children are included in the assessment and therefore there is scope for having a pretty holistic approach.
Does that mean housing and transport needs will also be taken into account in the assessment?
Transport and housing needs have not been set out in the legislation. We wanted to ensure we did not complicate the assessment procedure too much by having a complete assessment of needs across the board and therefore we restricted it to health and education. It will emerge as we discuss the regulations and the practical implementation of the legislation that there is no reason a wider assessment of needs cannot be catered for in the assessment process. This strikes me as sensible.
Will the Minister of State include social and occupational needs, such as the need for a person to have employment or a sheltered occupation? This could be very important for people with disabilities.
It was decided not to include employment for the same reason. It would not be possible to include it although a sheltered occupation could be included on the basis of personal and social services.
Amendment, by leave, withdrawn.
I move amendment No. 72:
In page 11, subsection (8)(a), line 29, to delete “may” and substitute “shall”.
Amendment put and declared lost.
I move amendment No. 73:
In page 11, subsection (8)(a), line 31, after “appropriate” to insert “(or if the applicant so requests)”.
The Minister of State said he might look upon this amendment favourably or revisit the issue at some stage.
He said he will consider amendment No. 74.
I will consider the issues raised in both amendments Nos. 73 and 74.
Amendment put and declared lost.
Amendments Nos. 74 to 76, inclusive, not moved.
I move amendment No. 77:
In page 11, subsection (8)(c)(i), line 46, to delete “endeavour to”.
Amendment put and declared lost.
Amendment No. 78 not moved.
I move amendment No. 79:
In page 11, subsection (8)(c)(i), lines 50 and 51, after “assessment” to insert the following:
"and that note is taken of the views (if any) of the applicant concerning his or her needs or preferences in relation to the provision of services to meet his or her needs".
Section 7(8)(a) already provides that a person being assessed may be interviewed, and section 7(8)(c) deals with the participation by that interviewee in the assessment process. Government amendment No. 79 will reinforce the focus on the individual applicant in the process by providing that assessment officers must take note of the individual preferences of the applicant. I am happy to respond to the views expressed in this respect by the Disability Legislation Consultation Group.
I am happy with that. However, I am concerned that the views of a spouse or a carer be taken into account if the person being cared for is not able to express his or her views.
Not really. However, I support what the Minister is trying to do. It is very laudable.
We will be prepared to facilitate such people in expressing their views.
Will another amendment be required on Report Stage to address this?
The applicant's views will be expressed by the advocate or person representing him or her and therefore there will be no need for an amendment.
What if the applicant is not in a position to make his or her views known?
In that case, the person would have an advocate.
It would not be the applicant's views that would be expressed but views expressed on his or her behalf. These would not be the same.
The requirement of the Disability Legislation Consultation Group was that there be a focus on what the applicant wanted. To all practical intents and purposes, the advocate will be involved in the process.
Will the Minister of State ascertain whether different wording could be used?
The applicant is not a position for an advocate to act on his or her behalf. In the next section, however, it is mentioned that the views of a guardian or a legal representative should be taken into account if the applicant is unable to make his or her views known.
With reasonable safeguards.
We would need safeguards because the advocate may not act in the best interests of the applicant. This is a welcome amendment, however, that would see if a person requires his or her needs to be expressed by others.
The request was that the applicant's views would be taken on board, not those of the parent or whoever else. That is an important point.
I am calling for the insertion of this provision with reasonable safeguards and precautions. A young lady appeared before us and made a striking case that she has a personal assistant but when the personal assistant goes on holiday, she goes into a home. Whose best interest is served by that? We must keep the person with the disability at the centre of the legislation and there may be times when the person cannot articulate his or her own needs and someone else must do it. We must be cautious but there will be times when people will not be able to voice their own concerns.
Would the concerns of the advocate or parent not be put forward already? This would only confirm that the applicant would be at the centre of the process.
We should not provide for such advocacy in the legislation. It is important the individual preferences of the applicant remain.
Amendment agreed to.
I move amendment No. 80:
In page 12, subsection (8)(c)(ii), lines 3 to 8, to delete all words from and including “unless” in line 3 down to and including “disability” in line 8.
Amendment put and declared lost.
I move amendment No. 81:
In page 12, subsection (8)(c), between lines 8 and 9, to insert the following:
"(iii) ensure that a person referred to in section 8(2) is given adequate information relating to the process of the assessment and the results of the assessment, if the applicant has not been provided with such as under subsection (8)(c)(ii).”.
Amendment put and declared lost.
Amendment No. 82 not moved.
Question proposed: "That section 7, as amended, stand part of the Bill."
Section 7(5) states that an assessment under the section shall be carried out without regard to the cost of it or the capacity to provide any service identified. Will there be any constraint on anyone who wants an assessment getting one?
There will be no constraint at all but this part of the Bill is predicated on the overall resource provision. To all intents and purposes, however, the issue of resources should not, and in my opinion will not, be an issue when it comes to an assessment of needs. We have strengthened the Bill to ensure assessments must start within three months and the length of time within which they must be completed will be governed by regulation. While the overall provision is there, I do not see it affecting the assessment process and it is fair to say that the assessment process will take place as outlined.
What if in October of one year funding ran out and we were told there was no way under this legislation that a specified body could be forced to make money available? If the HSE does not have money for assessments, must the person wait until the next year? Will people who are already in receipt of services be allowed to continue receiving them or must they apply for assessment also?
Those already in receipt of services will continue to receive them. The assessment will be carried out for everyone to identify the overall requirements but it will not affect existing services. If the HSE is not in a position to provide the assessments, it would be a poor look out for providing the services. The provision of assessments should not be an issue.
Question put and agreed to.
Amendments Nos. 84 and 168 are related to amendment No. 83, therefore, amendments Nos. 83, 84 and 168 will be discussed together by agreement.
I move amendment No. 83:
In page 12, subsection (1)(a), line 18, after “person”)” to insert “has or”.
These amendments are about attitudes. Inclusion of the notion of someone forming an opinion if a person has a disability says much about the Bill. Someone either has a disability or does not. The definition is so narrow anyway that it is clear who will be covered under the Bill. It should not then be left to the opinion of a medic, deciding officer or assessment officer to determine if a person has a disability. Clearly the Bill states who it covers but this section leaves it open to opinion. If a person thinks that someone on crutches for a year has a disability but another person disagrees, these amendments will clear up any confusion by removing the uncertainty and opinion-based view of a sector of society. There are no cost implications because the Bill determines who has a disability. We have spent the last three hours arguing over the definition. Nothing should be left to people's opinions and these amendments would remove that uncertainty.
Section 8 deals with the parameters for applying for an assessment of need. Section 8(1)(a) provides that a person who is of the opinion that he or she may have a disability may make an application for an assessment. Amendments Nos. 83 and 168 seek to include a person who has a disability as well as a person who is of the opinion that he or she has a disability. The present text includes such persons because someone with a disability will also be of the opinion he or she has a disability. I do not propose, therefore, to accept amendments Nos. 83 or 168.
Section 8(1) describes two circumstances in which applications for assessment may arise. In one case a person considers he or she has a disability and makes an application. In the other case the person is unlikely to be able to form the opinion that he or she has a disability and another person applies on his or her behalf.
The provision as drafted means that the decision to apply for an assessment rests with the applicant, unless the applicant is unlikely to appreciate the need for the assessment. This is consistent with the focus on the needs of the individual which underlines the approach to assessment in this Bill.
I am not sure the proposed amendment would improve the approach being taken and for that reason do not propose to accept amendment No. 84. In brief, this provision is intended to facilitate a person who is of the opinion that he or she may have a disability. On that basis the person may apply for the assessment and have that opinion tested.
Amendment No. 84 does not detract from that intention. It removes the uncertainty of an opinion and proposes that the phrase "is likely to be unable to form such an opinion" be replaced with "is likely to be unable to make application under this section". It simply removes the reference to "opinion" which can be subjective.
If "opinion" is removed a person who may be of an opinion but would not know for certain could not apply.
That is exactly the point. Amendment No. 84 refers to a third party. Therefore, I use the phrase "is likely to be unable to make application under this section". It streamlines and clarifies the intention.
This provision should protect people who are not fully aware they have a disability.
The section gives the person the right to apply on the basis of his or her opinion, then a determination will be made.
Why not allow the person to have the opinion that he or she would be "likely to be unable to make application under the section"?
One could be physically handicapped and not be able to express an opinion in which case another person could form the opinion. That is the intention of this provision.
Surely the wording of amendment No. 84 is much clearer. It proposes to use the phrase "likely to be unable to make application under the section".
If a person had a grave disability and did not have the capacity to make an application in the first place that would be——
This refers to the third party; that is the point of the amendment. The third party has the right to form the opinion rather than coming to the conclusion that the person would not be able to make the application. The third party would make it on the person's behalf. The Minister of State is not going to——
This provision refers to the first party not the third party.
Section 8(1)(a) covers a blind person who would be of the opinion that he or she has a disability but would not be able to apply. The Deputy’s amendment would bring that person into section 8(1)(b) for which there is no necessity.
Will the Minister of State give an example of a person covered by section 8(1)(b)?
A person with a mental disability would need somebody to apply on his or her behalf.
That is a better example. It would not necessarily apply to someone with a sensory disability but to someone with a mental disability.
That person would be unable to form an opinion.
Yes. That is a better example.
That person is covered by subsection (b).
Amendment put and declared lost.
Amendment No. 84 not moved.
I move amendment No. 85:
In page 12, subsection (1), lines 25 and 26, to delete all words from and including "health" in line 25 down to and including "resides" in line 26 and substitute "Executive".
Amendment agreed to.
Amendment No. 86 not moved.
I move amendment No. 87:
In page 12, subsection (2), between lines 36 and 37, to insert the following: "(e) a carer or family carer”.
There are approximately 150,000 family carers and often the carer is close to the person receiving a service and assistance. In many cases the carer is not a spouse, parent or other relative. This amendment was suggested by the Carers Association which states that these carers save €1.6 billion per year and provide over 3 million hours of care work per week.
The association is amazed that the Bill does not mention family carers. It points out that personal advocates and parents are mentioned and a minimum recognition should be given to carers by the use of the term "carer or family carer" in the Bill. This suggests that the specified person could include a carer who may not necessarily be a spouse, parent or relative. I am not sure about this but I agreed to put it forward for discussion.
The categories of persons already identified in section 8(2) are readily identifiable and would generally be regarded as having some legal standing. To include a carer or family carer who is not also a relative guardian, legal representative or personal advocate could be problematic. It would not be clear to the HSE what responsibility such a person was willing to take in regard to an assessment or related services.
The existing provision covers the circumstances in which an applicant would require a representative. Furthermore, any consideration to include other people to act on behalf of an applicant might best be dealt with by way of regulation under section 20.
Amendment, by leave, withdrawn.
I move amendment No. 88:
In page 12, subsection (4), lines 39 to 44, to delete all words from and including "officer" in line 39 down to and including "board" in line 44 and substitute the following:
"employee of the Executive that a person may have a disability or where a person is in receipt of a health service provided by the Executive or both, he or she may arrange for an application under subsection (1) to be made by or on behalf of the person or may request the Executive”.
Amendment agreed to.
Amendment No. 89 not moved.
I move amendment No. 90:
In page 12, subsection (5), line 46, to delete "or a request under subsection (1)” and substitute the following:
"under subsection (1) or a request under subsection (4)”.
This is a technical amendment to clarify the intent of this subsection. I thank Deputy Finian McGrath and acknowledge the assistance of the National Disability Authority in drawing attention to this point.
I strongly support the Minister of State on this amendment.
Amendment agreed to.
I move amendment No. 91:
In page 12, subsection (5), line 47, to delete "chief executive officer of the health board concerned" and substitute "Executive".
Amendment agreed to.
Amendments Nos. 92, 93 ,112 and 113 are related and will be discussed together by agreement.
I move amendment No. 92:
In page 12, subsection (5), line 48 and in page 13, line 1, to delete "within three months of" and substitute "forthwith after".
This self-explanatory amendment is to ensure a timeframe is in place. There are concerns about the roll-out of the Bill. There will be many excuses made about this. The first will be that capacity has to be built. Other excuses will be that assessment officers have to be recruited and trained or that advertisements for the posts are in a European journal. Each Member can list ten other different excuses. This amendment aims at ensuring the provisions of an assessment will be introduced in a reasonable length of time. As it will need huge resources up front, a timeframe has to be built into the legislation to ensure it happens.
Amendment No. 93 aims at including urgent cases. Section 8(5) states:
Where an application or a request under subsection (1) is made, the chief executive officer of the health board concerned shall cause an assessment of the applicant to be commenced within 3 months of the date of the receipt of the application or request ...
Amendment No. 93 proposes to provide that, in urgent conditions, the assessment should commence immediately and should be completed without undue delay, within a maximum period of three months from commencement. An end-time is necessary in these cases.
Several groups made submissions to the joint committee on this matter. Aware claims the commencement period of three months for assessments is too long. People with depressive illnesses may, from time to time, experience acute phases of unwellness. In cases of severe depressive episodes, a three month wait for commencement of assessment can cause unbearable suffering for both the person and his or her family. In some cases it can even prove life-threatening. Depressive illness is treatable but in cases of severe depressive illness and where it is untreated or treated inadequately, it can prove fatal.
Of the 444 people who committed suicide in 2003, 89% can be traced back to depression which was treatable. Enable Ireland maintains that assessment of need must begin within three months of referral but no end-point is specified. This lack of clarity hints at the possibility of an open-ended assessment with a consequent lack of clarity around the implementation of services after assessment. While the Bill states this will be provided without undue delay, it is important to put an end-point to this provision. The Institute for Design and Disability asked what penalties would be enforced if an assessment does not begin within three months of receipt of the application. How can this be implemented? What determines the compliance of the assessment officer with the injunction to complete without undue delay? In urgent cases it must begin earlier than this. If it keeps going on, what can be done about it? There are no penalties contained in the provision to ensure it is moved on.
Amendment No. 13 is similar. Where a chief executive officer of a health executive has arranged for the preparation by a liaison officer of a service statement, the chief executive officer concerned shall cause a service statement to be commenced within three months of the date of the receipt of the assessment report. This should be completed without undue delay, within a maximum period of three months from commencement. The ICTU brought this to my attention.
The key words in amendment No. 112 are "without undue delay". This amendment aims to bring efficiency to the system and end the bureaucratic delays that exist in the provision of services. Delays in the provision of services are the source of most complaints. Some people have been waiting for services for years. The days of delays must end. I urge the Minister of State to support amendment No. 112 because it strengthens the section in the interests of the person with the disability. It is also sensible and flexible. The disability groups have requested this amendment.
An amendment providing for a timescale to be put into the regulations was passed today. This should meet the requirements of these amendments.
Amendments Nos. 92, 93 and 113 seek to impose a timeframe for commencement and completion of assessments and service statements. Amendment No. 112 would require the services outlined in the service statement to be provided without undue delay. The question of establishing time limits for the assessment process is already covered in the legislation. Section 8(5) requires the assessment to commence within three months of the applications and be completed without undue delay. It is not reasonable to require every assessment to commence forthwith, as envisaged in amendment No. 92.
Section 20 allows for the making of regulations to govern the procedures for assessment, including different timeframes within which assessments should be carried out. It is envisaged that regulations would establish different intervals within which the assessment would be carried out depending on the category of disability and the age of the person. Such regulation would also allow for the prioritisation of the assessment of urgent cases where wanted. I spelt this out in detail earlier.
The intention of amendment No. 112 is geared towards requiring the services in the service statement to be provided without undue delay. The service statement is a document which will set out the services that can be delivered to the person in any individual case and the timing of such provision. The content of the service statement is dependent on available resources, eligibility, practicability and the assessment report and standards to be put in place pursuant to section 9. Once prepared, each individual will have a right to the contents of the service statement. This is a more rigorous way of providing for these services than the Deputy's amendment would allow.
Amendment No. 113 envisages a period of up to six months between the date of the assessment report and the service statement. This detail may be more appropriate to the standards provided by the health information and quality authority under section 9 where important distinctions as to entitlement could be made regarding priorities for urgent cases, children and different types of disability. I do not propose to accept any of these amendments.
The term "forthwith" is more appropriate to what the Minister of State envisages.
Amendment put and declared lost.
Amendment No. 93 not moved.
Amendment No. 95 is an alternative to amendment No. 94 and we will discuss both together.
I move amendment No. 94:
In page 13, lines 3 to 12, to delete subsection (6).
I want to delete lines three to 12 inclusive on page 13. The 2004 Act assessed children with regard to special needs in education. Does this Bill imply that if an assessment was carried out under that Act, there is then no need for an assessment to be carried out under the current legislation? If so, there would clearly be two different types of assessment. The 2004 Act would have been more directed to whether a child could benefit from education, and what type of education it might benefit from. That Bill is broader than the current one, which is also very restrictive. Anyone making an assessment under this legislation would be looking at the educational needs of a child with a disability. I am therefore assuming that an assessment of a child under the 2004 Act would have been very restricted and that the assessment would have been carried out solely with regard to that legislation.
It is grossly unfair to penalise a child by means of the legislation before us because of that child being assessed, with regard to its needs, under different legislation, when clearly the two pieces of legislation did not cross over. I am therefore asking for lines three to 12 to be deleted. Retaining those lines might allow for greater resources to play around with in the interim, but at the end of the day, the child in need of the services to be provided by this Bill will have to be assessed too. One might put off the evil day for a short while by retaining the lines in question, but not forever. The change should be made now rather than later.
The organisation for children in hospital raised this concern with me. It maintains that subsection 6(a) denies the child a right to a second assessment to focus on health needs only. The 2004 Act deals with educational needs. Section 8(6)(a) of the current Bill reads:
Where an assessment of a child has commenced under section 4 of the 2004 Act, an application shall not be made under subsection(1) in relation to the child.
One could read that as saying that the health needs of the child could be excluded. If that is so, the amendment I am proposing will correct that situation. The child's health needs are important, and as I understand it, the section prevents an assessment of health needs being undertaken if the assessment of the child commenced under section 4 of the 2004 Act.
Section 8(6) provides that an assessment of the child will not be carried out under this legislation where one has already commenced under the Education for Persons with Special Needs Act 2004. The subsection also provides that any health service needs identified in the education assessment will be notified to a liaison officer. These health services can then be considered for inclusion in a service statement under section 10 of the Bill. These provisions avoid duplication of effort and help provide a more streamlined service for children being assessed.
I note that these amendments seek to delete elements of those provisions. In doing so, the amendments would permit an assessment of a child under the Bill and the education legislation at the same time. As many of the same scarce professional personnel would be involved in both assessments, the proposals could result in unnecessary duplication of effort, both for the personnel concerned and for the children and their parents, who would have to undergo two parallel assessments as a result. As a result of this, I do not propose to accept the amendments.
While I appreciate the spirit of the amendments, the fact is that where an assessment is being carried out under the Education for Persons with Special Needs Act, that will take into account the educational and health needs of the child. The same professional personnel will be involved in both assessments. I dare say that if there were to be additional requirements in terms of the health of a child, they would be included in the assessment. Clearly, there would be duplication if every child has to undergo both assessments because of the legislation. That would not be in anyone's best interests.
Most mothers would not put their children through two assessments. One would do so only if one felt that an area of one's child's life was not being dealt with under the previous assessment. It is not as if people who are already stretched want to go through these assessments, which of necessity are invasive and personal. Depending on the difficulty or the disability the child may have, they can also be very traumatic, taking place in unfamiliar surroundings and so on. Accordingly, there is not going to be an influx of mothers with children in tow, seeking additional assessments, if they feel that the assessment carried out under the 2004 Act was sufficient.
The Minister of State repeats that we must trust him on certain issues, but he must trust mothers to know about and be reasonable about what is being provided for their children. I could not imagine anyone dragging a child to an unnecessary assessment.
That is the point. The second assessment will not be necessary. The assessment under the Education for Persons with Special Needs Act will include an input from the health board, and consequently a comprehensive assessment will take place under that Act, making a second assessment under this Bill unnecessary.
Is the Minister of State saying that under the 2004 Act, when an assessment of a child is made, that is an holistic assessment which considers the child's medical needs as well as its educational needs?
The health board will be involved in that assessment process. Subsection 4(6) of the Education for Persons with Special Needs Act states:
An assessment for the purpose of this section shall include an evaluation and statement of the nature and extent of a child's disability (including in respect of matters that affect the child overall as an individual) and an evaluation and statement of the services which the child will need so as to be able to participate in and benefit from education, and, generally, to develop his or her potential.
That does not tell us very much, other than the assessment will be about ensuring the child benefits from education. We can only deal with the legislation we have in front of us, and what will happen in the future as a result of this legislation. For example, a child might have been assessed under the 2004 Act three months ago. When the legislation before us comes into effect and the parents of the child, or the GP involved, or the people dealing with the child, feel the child would benefit from an assessment related to its health needs, I am concerned that the child would be excluded because it had been assessed under the 2004 Act.
It is in black and white including, "in respect of matters that affect the child, overall, as an individual". It goes on to say, at section 7, that if a health board or council refuses to accede to a request under subsection (3), the parents of the child concerned may appeal against the refusal. It is included in the Education Act.
If everything was so rosy in the garden, why is there an exclusion clause here? If another assessment was not necessary, as everyone agrees, why is there an exclusion clause?
To ensure that two assessments are not being carried out for the one child, where the first has comprehensively covered everything, including the child's health needs. I do not even have to ask the Deputy to trust me on that. It is there in black and white.
The Minister of State is beginning to sound like Tony Blair. He should be careful.
Trust me. This amendment is concerned with children in hospital and their right to services and support.
I have listened carefully and will withdraw the amendment based on what the Minister of State has pointed out.
Will Deputy Lynch withdraw her amendment?
I have grave reservations, but I will withdraw it.
Amendment, by leave, withdrawn.
Amendment No. 95 not moved.
I move amendment No. 96:
In page 13, subsection (7), line 13, to delete "A health board" and substitute "The Executive".
Amendment agreed to.
I move amendment No. 97:
In page 13, subsection 8(a), line 23, to delete “of circumstances” and substitute the following:
"in the personal circumstances of the applicant or to the services available to meet the needs of the applicant".
Again, this is basically an issue about needs and services. I would like to focus on needs again, and particularly in this amendment on the needs of the applicant. On the broader issue of the needs and the services, these should be both family-friendly and geographically-friendly. I am sure the Minister of State is aware that this is an issue about services for people with disabilities which are outside their own catchment areas. There was a case in my constituency recently concerning a person with intellectual disability from Clontarf, but with the service located in the midlands. That is a major journey for the family and it should not be an option, particularly when there is a service nearby, as in this case, St. Michael's House.
It is in the interests of the taxpayer, and of the services and families, to have family-friendly services that are located close to families, in so far as that is practicable. There is also the tragic situation where some blind children must travel to the North for services. That is beginning to end at this stage, but it should not be accepted as part of the provision of services. I was talking to a gentleman from County Mayo, recently, a deaf person, who said that he spent most of his life in Cabra, in Dublin. He left home at a young age and had been away from Monday to Friday every week over a prolonged time period. It just did not work for him and his family.
I want to get away from this model and to have the needs of the applicant identified on the personal human level, and also the needs of the family. Services should be family-friendly and I emphasise strongly that the personal circumstances should be taken into consideration. These are the important aspects to this amendment.
I agree, but section 8(8)(a) allows a person to make a further application for assessment where “there has been a material change of circumstances,” while section 8(8), paragraphs (b) and (c), provide that a further application may be made where “further information has become available which either relates to the personal circumstances of the applicant or to the services available to meet the needs of the applicant” or where “a material mistake of fact is identified in the assessment report”. The section as constructed adequately covers a change in personal circumstances or service availability. It covers the points the Deputy has made, with which I completely agree. As such, I do not believe there is a need for this amendment.
Amendment, by leave, withdrawn.
Amendment No. 98 not moved.
Question proposed: "That section 8, as amended, stand part of the Bill".
Section 8(2)(b) refers to “a guardian of that person or a person acting in loco parentis to that person”. It would be useful for the Minister of State to tell the committee what he means by in loco parentis and to give examples as to who that might be. Also, are we talking about a personal advocate within the meaning of the Comhairle (Amendment) Bill 2004, which has not yet been debated or passed by the Oireachtas? I wonder whether we can do that when it is not on the Statute Book. Are we not putting the cart before the horse?
Perhaps I should not ask this but I will. It appears from this section that anybody who is of the opinion that he or she has a disability may apply for an assessment. That application has to be taken on board and an assessment must be carried out. Is there a requirement for any type of prima facie evidence that a person has some form of disability? It follows that some 100 people, for blackguarding reasons, could apply for assessments and according to this they must get them. It sounds spurious and strange, but on reading the Bill, it is something that could conceivably happen if someone wanted to cause disruption.
In loco parentis is a legal term for the person representing the child involved. It is used in different types of legislation.
It would be helpful if the Minister of State could give some examples. The only time I have heard it being used is in a school situation where a teacher acts in loco parentis. There may be others. I am curious to know where else it might be used.
A grandfather could act in loco parentis, for the sake of argument, if the parents were not alive.
Would the grandparent not then be a guardian?
He or she could well be, but not necessarily.
A teacher acts in loco parentis. Are we saying that the principal of a school could ask for an assessment?
We are only ordinary lay persons, so we just want to find out what this means.
Is it essential that the Deputy knows? It is a legal term, as such.
If we are to pass the section it would be useful to know where this applies. A grandfather is one example, possibly. There may be others. The Bill refers to "acting in loco parentis”. Teachers act in loco parentis. Does that mean that a teacher in a school can be the person to form an opinion about a child under his or her care and apply to the health board for an assessment? Can the principal of a school act in loco parentis? I want to be clear on this.
It could apply to a relative who is put in the situation whereby he or she is acting in loco parentis for a child, where perhaps a parent is either unavailable or incapable of representing the child. It also applies in other legislation. It normally refers to a relative, but in education legislation a teacher could act in that capacity.
That is already the current practice, especially in disadvantaged schools with dysfunctional children. The principal of the school gets directly involved in assessments and reports.
It normally happens in situations where parents are alive but do not take responsibility.
Even where they are responsible, when children are in the care of a teacher, he or she is acting in loco parentis. In legal cases taken on this issue judgements have cited what a reasonable parent would do or not do under certain circumstances. Someone acting in loco parentis could actually be a teacher in a school and I want to be clear about it. Are there age limits for guardians and for persons acting in loco parentis?
There is a difference between what Deputy McGrath is saying about asking the health board what can be done about a dysfunctional family and someone in loco parentis asking for an assessment to done on a child that may have an intellectual disability. Some parents would refuse to come to terms with the fact that their child is suffering from an intellectual disability.
That is like the case of the adopted child from Indonesia.
Was there an issue of disability in that case?
No. It involved someone who was acting in loco parentis.
There is a difference. Some parents find it very difficult to come to terms with a child that has a disability. It is not that they are bad parents.
Is there a specific point Deputy Stanton wishes to make on the issue of a person acting in loco parentis?
It is important that we know what we are talking about when we state that a person acting in loco parentis can apply for an assessment. Who can such a person be? Could he or she be a principal teacher of a school? I have acted in loco parentis in the past when children were handed over to my care in a classroom. We must be clear about what that means as the position is vague as it is set out in the Bill. The definition of a guardian is quite clear, but the definition of a person acting in loco parentis is vague. I would not be happy if my child was in a school and the principal, acting in loco parentis, decided to ask for an assessment of my child.
We can clarify it further. As far as I am aware, acting in loco parentis means that where the parent is incapable of acting or is not available to act, then some other relative can act instead. A school teacher or principal could also act in loco parentis, but it would have to be with the permission of the parent. Section 20(e) states:
the manner of determining the person (other than a personal advocate designated by Comhairle) to represent an applicant who by reason of his or her disability or age is unlikely to be able to represent himself or herself in relation to specified matters arising under this Part.
We can get a clarification of in loco parentis as it is a legal term. We can put it in writing and send it to the Deputy.
I remind the Minister of State that the Comhairle (Amendment) Bill 2004 has not yet been passed. If anyone makes an application for an assessment, does it have to go ahead?
There will be a determination by the assessment officer whether the person has a disability or not. The officer will determine quickly whether the person comes within the definition of a disability for the purpose of carrying out an assessment.
In other words, if an application for an assessment is made, it does not necessarily have to happen. The assessment officer can turn it down. I did not think that was possible. I thought it had to happen.
Section 7(7) outlines the modus operandi. It states:
A report under subsection (6) (referred to in this Act as "an assessment report") shall set out the findings of the assessment officer concerned together with determinations in relation to the following—
(a) whether the applicant has a disability,
(b) in case the determination is that the applicant has a disability—
(i) a statement of the nature and extent of the disability,
(ii) a statement of the health and education needs (if any) occasioned to the person by the disability,
(iii) a statement of the services considered appropriate by the person or persons referred to in subsection (2) to meet the needs of the applicant and the period of time ideally required by the person or persons for the provision of those services and the order of such provision,
(iv) a statement of the period within which a review of the assessment should be carried out.
That occurs only after an assessment has been carried out under section 7(6). This has to kick in anyway, once the application is made.
The assessor must decide whether a person has a disability or not in the first place.
Correct. There does not seem to be any prima facie evidence required for this to be carried out.
A person will get a report stating that he or she does not have a disability if that is the opinion of the assessment officer.
That is the point I am making. Anyone can make an application for an assessment. If that is done, the person may get a report saying that the child does not have a disability.
That is correct. Anyone can do that.
What about my point on the Comhairle (Amendment) Bill 2004?
Legislation in the form of a Bill can be mentioned. There is a precedent for that, even though the legislation has not been enacted yet.
Question put and agreed to.
I move amendment No. 99:
In page 13, lines 30 and 31, to delete "health board concerned" and substitute "Executive".
Amendment agreed to.
I move amendment No. 100:
In page 13, line 32, to delete "may" and substitute "shall".
This amendment would create an obligation on health information and quality authority to produce standards for the assessments of needs. This proposal would create a situation where health information and quality authority would be obliged to make standards to govern the assessment process in every detail. As a result, every detail of the assessment process would have to be standard based. The intention of section 9 is that standards should be set in regard to the main features of the assessment process. In the circumstances, I do not intend to accept the amendment as it could give rise to unnecessary bureaucracy.
The Minister of State is not into bureaucracy but I am very concerned with high standards in legislation.
Amendment put and declared lost.
Section 9, as amended, agreed to.
We have gone through 140 amendments effectively because some have been discussed together. Committee Stage will resume at 10.30 a.m. on Thursday, 5 May. I propose we do not meet, as previously planned, on Tuesday, 10 May in order to accommodate the Minister's official business in Europe. Committee Stage will further resume on Wednesday, 11 May and Thursday, 12 May. Friday, 13 May is another available date but our consideration of the Bill should be completed by Thursday, 12 May. Is that agreed? Agreed.
The select committee went into private session at 6.02 p.m. and adjourned at 6.05 p.m. until 4.45 p.m. on Wednesday, 4 May 2005.