I welcome the Minister of State at the Department of Justice, Equality and Law Reform with responsibility for disability issues, Deputy Fahey, and his officials. The select committee is resuming its consideration of Committee Stage of the Disability Bill 2004.
SECTION 10.
I move amendment No. 101:
In page 13, subsection (1), lines 35 and 36, to delete all words from and including "chief" in line 35 down to and including "she" in line 36 and substitute the following:
"Executive shall authorise such and so many employees of the Executive as it".
This amendment has already been discussed with amendment No. 10 which has been agreed and which clarifies that "Executive" means the Health Service Executive.
Amendment No. 102 is out of order.
On what basis?
Like the others, it involves a potential charge on the Exchequer.
Anything that would cost money will not be dealt with.
The select committee is not empowered to introduce measures that would cost money.
However, the Minister of State can.
Can he? At this point in time the Opposition cannot deal with anything that would impose a charge on the Exchequer.
It is our duty to point out that the Minister of State could, if he wished to do so, given that we are discussing the use of the words "shall", "may" and "must".
The amendment has been ruled out of order.
I move amendment No. 103:
In page 13, between lines 38 and 39, to insert the following subsection:
"(2) A liaison officer shall be independent in the performance of his or her functions.".
This amendment would insert a new provision in the Bill to allow the liaison officer to be independent in the performance of his or her functions. The Irish Human Rights Commission strongly supports the inclusion of such a measure and maintains that there is no requirement for the liaison officer to perform his or her functions independently in the same manner as the Bill provides in respect of assessment officers.
The drawing up of the statement is the function of the Health Service Executive. The key provisions in this regard are contained in subsection (6) to ensure a service statement will apply only in so far as practicality and budgetary constraints will allow. Liaison officers are charged with determining how these factors impact on the service statement and the assessment report is listed as one of the six factors to be considered. This is an issue that should be considered because it is very important for the liaison officer to be independent, even though such officers are appointed by the Health Service Executive.
There is a question mark against the independence of assessment officers who are also appointed by the Health Service Executive, particularly when the chief executive officer can decide how long they will remain in their posts. For example, last night the DLCG, the Government's consultative group, claimed it had been betrayed by the Minister and issued a very strong statement claiming the Bill was inadequate and fatally flawed. I think the chairperson, Angela Kerins, was involved in issuing the statement. I do not know whether the Minister of State will take the DLCG's response to the Bill into account. Every organisation which represents people with disabilities opposes the Bill but I am not sure if the Minister of State is listening to me.
I am listening to the Deputy.
Every organisation concerned with disability issues appears to be opposed to the Bill. When the DLCG issues such a strong statement claiming that the Bill is completely flawed and calls it a betrayal, it is important the Minister of State responds and lets the select committee know what he will do about the matter because it is very worrying that such groups have no confidence in the Bill. They now claim full consultation is urgently required. Is the committee wasting its time on the Bill if the experts in every organisation are completely opposed to it? The DLCG was appointed by the Government and it opposes the Bill. I am aware that it had problems in meeting the Minister in recent months but the situation is now serious. If the people for whom we are working — the amendment aims to specifically assist people with disabilities — are completely opposed to the Bill and are talking about disengaging from discussions with the Government, are we wasting our time debating it?
I support Deputy Stanton's amendment. Independence in any walk of life is crucially important. For the person who needs a holistic approach to services, the person assessing or implementing services needs to be independent. The difficulty we have with the connection with the Health Board Executive is that if officers are drawn from within the system — I made this point the other day on another amendment about the need for independence within the system — it will not be possible for them to be genuinely independent in making their assessments. It is asking the impossible from people who have worked within an organisation for a long time and know it intimately.
The Minister of State needs to tell the select committee whether Mr. Cearbhaill O'Meara was telling the truth yesterday morning on "Morning Ireland". The Minister of State said the previous morning that it had been fully explained to Mr. O'Meara that he was not excluded under the provisions of the Bill. Mr. O'Meara is a highly intelligent man who made a presentation to the committee. He said on "Morning Ireland" that he was excluded. We need to ask the Minister of State whether he intends to proceed with the Bill as we discuss its more serious elements. Will he proceed with it if the people it is supposed to serve and the persons he appointed to advise him are deeply unhappy with it? Did he have any connection with disability groups as the discussions were ongoing or did he merely consult his civil servants? Did those who drafted the Bill have any discussions with the DCLG? It appears the Bill is structured and written in a very clinical and narrow way and that it was not written by a politician. We need to hear from the Minister of State because of what has happened in recent days since the commencement of Committee Stage. I would hate to think the committee is wasting its time. The Minister of State needs to clarify whether Mr. O'Meara was telling the truth on "Morning Ireland".
We are dealing with amendment No. 103.
I understand the Chair's point and completely support it.
I am happy to allow members to speak but we are discussing amendment No. 103.
I strongly support amendment No. 103 because it is a very important and constructive amendment. It gets to the heart of this part of the legislation. The key word in the amendment is "independent" because the liaison officer has to focus on the person with the disability. The liaison officer's responsibility is to the person with the disability.
I share the concerns of many of my colleagues about the Bill and ask the Minister of State to listen to the various groups which work with people with disabilities and people with disabilities themselves because their concerns should be listened to. If we are serious about having inclusive discussions — I am aware the Minister of State has met people with disabilities and disability groups — we should never stop listening.
The amendment states a liaison officer should be independent in the performance of his or her functions. It is a positive and constructive amendment because the liaison officer's primary duty is to the person with the disability, regardless of whether it is a physical or intellectual disability. The key phrase is "in the performance of his or her functions" in order that he or she would be constantly allowed to carry out his or her functions in such a way as to ensure the person with the disability came first.
I know of the concerns of the disability legislation consultation group, DLCG, and have arranged to meet it again on 7 May to discuss its concerns. The Government is proceeding with the Bill.
Is it?
It is. As I said previously, there are two fundamental areas in which there can be no changes but the Government is prepared to examine the amendments tabled and the DLCG's points. As far as is humanly possible, I am anxious to try to consider the case being made by the Opposition and was forthcoming during the previous debate. We must be clear. The Government has made a strong commitment to this legislation and the allocation of significant resources for its implementation. Its intention is to proceed with it.
In respect of the person mentioned, we have dealt with the matter. There is no question that the person concerned is covered by the Bill. I have received additional advice to assure me of this. The person concerned has been informed but will be informed again in writing. There is no argument about his inclusion.
Did this advice come from the same person who gave the Minister for State the original advice?
I am advised by my officials in the Department who have the best expertise, legal and otherwise, available to them. When I state someone is covered by the Bill, I say it with the authority of the best advice available.
Is the Minister of State saying all other advice is wrong and his officials are right?
The person involved who has stated he is not covered by the definition is incorrect. I wish to state categorically that he is covered.
He is not the only one saying it.
The Deputy mentioned him as an individual case.
We will not examine the details of one particular case.
I wished to clarify the issue raised by the Deputy.
On amendment No. 103 and in response to Deputy Stanton's question, the Bill provides that the assessment officer will be independent and have responsibility for delivering an assessment of need for each individual. In addition, the assessment will be undertaken without regard to the cost of the services envisaged or the capacity of the executive to provide them. The independence of the assessment officer is essential to the process and responds to a key concern of the disability interest groups in this respect.
The liaison officer has a different role and it is equally essential that he or she is part of the executive and involved in managing the needs of people with disabilities within the practical constraints that apply from time to time. His or her role is to prepare a deliverable service statement. He or she will have knowledge and understanding of service issues and the demands on services as well as related resource implications and the capacity of the executive to respond in individual cases. In the light of the role envisaged for the liaison officer in the Bill, it would be inappropriate to assign him or her the statutory independence proposed by the amendment. For that reason, I will not accept it.
I hope the members of the select committee will understand the liaison officer is a critical person in putting in place a service statement to meet the needs of the individual taking account of the constraints that apply. As I stated previously, the role of the liaison officer is important in the continual review of service statements, taking account of additional resources coming on stream or a change in the circumstances of the person involved. It would not make sense or be necessary to give him or her statutory independence. For that reason, I am rejecting the amendment.
It appears the assessment officer will carry out the assessment and is independent, even though he or she is appointed and employed by the Health Service Executive. The liaison officer will receive the service statement, at which point the first trap door or shutter will come down on the Bill. That is what people are worried about. The liaison officer is not independent in the performance of his or her functions and must take account of resources and the executive's priorities. The Minister of State is saying he or she must do what he or she is told by the CEO. The service statement provided will be qualified and modified from this point on. The services available to persons with a disability can be curtailed at this juncture.
An issue was raised about prioritising service needs, a concern of many. If the liaison officer was independent, this is something he or she would be able to accomplish immediately. There are statements in the Bill to the effect that the liaison officer must take account of resources and so forth in preparing a service statement. This is made clear in Part 6. The issues of practicality and eligibility are addressed therein. Everything the Minister of State has mentioned is covered by the Bill. We are trying to give the liaison officer more freedom.
What is the Deputy citing?
If the Minister of State examines section 10(6), it states: "Without prejudice to the generality of subsection (2), in preparing a service statement the liaison officer concerned shall have regard to the following”. It refers to the assessment report, the eligibility of the applicant, approved standards, the practicality of providing services, the need to ensure, in the case of a service to be provided by a health board, that the provision of the services would not, if implemented, result in net expenditure by the board in excess of the amount determined by the Minister and so on. Everything the Minister of State has said is covered in spades.
The liaison officer, even though he or she is appointed by and employed by the Health Service Executive, should have more freedom in preparing the service statement. He or she should be independent in bringing the statement together in order to prioritise the needs of the person concerned while keeping in mind, if necessary, the shackles the Minister is placing on him or her under this subsection.
We must be realistic. The liaison officer is in a position to do this. He or she is not required to be independent in doing so. If Deputy Stanton was bringing forward this legislation, attention would have to be paid to the issues raised in section 10(6), unless he could produce a magic wand for every liaison officer. The liaison officer has the task of drafting a service statement based on the ability of the service to deliver for the individual concerned. That is the reality, regardless of which parties are in government. An assessment statement contains the ideal provisions but has no regard for the resources available. The next step is for the liaison officer to assist the individual concerned in the preparation of a service statement which must take into account the services that can be delivered. If the Deputy was in government today, that would not change.
Let us be realistic. The only way there can be change is with continuous increases in resources to make up the difference between the unfulfilled needs in the service statement and the requirements listed in the statement of assessment. I am not pulling the wool over anyone's eyes. Let us be frank and acknowledge that no Government can wave a magic wand and provide all the services one would desire. The challenge for Government is to try to provide the necessary resources. The Bill is specific in identifying needs that have not been met, correlating them on a macro basis and providing the Dáil with a figure for extra resources.
Half of the Budget Statement was spent expressing the desire of the Minister for Finance to deliver significant extra resources, the first time that had happened in the history of the State.
Not one penny has been delivered.
I did not interrupt the Deputy. I know she will not want to hear this. If she calls for the Bill to be withdrawn——
I find it difficult to listen to what I know to be untrue.
We have all listened to each other. Let us continue to be courteous to one another.
It is important that I, on behalf of the Government, indicate the reality of this legislation which is not accepted by those who do not want to listen. The reality is that its provisions are based on a significant increase in resources, as outlined by the Minister for Finance. A sum of €900 million has been provided over a five year period. The Minister also has the ability to increase this amount in any year over the period. Ten years ago there was an increase of £1 million per year. It does not matter who was in government at the time.
I remember it well.
The Government is making up for the neglect of all parties in the House over many years. The Bill commits the Government to providing these resources. I reject the claim that it does not adequately respond to the needs of people with a disability and that it should be withdrawn.
I find it difficult to accept the notion that to face reality is to accept the status quo. Consider the reality of the lives of people with disabilities. I thought this legislation was supposed to improve their lives rather than maintain the status quo. If the liaison officer has to take account of what is available, he or she will play no role. He or she shields the Government from the anger of people with disabilities. The service statement will be returned with red lines through the recommendations. This legislation is about people with disabilities becoming equal citizens rather than restricting their opportunities to so do. The Minister of State must face reality and note that there are people advising him whose agenda is to protect the Government. That is their job. If that is the case, let us have the truth.
One cannot say to someone that his or her only entitlement is based on what is available. The Minister of State claims that as resources become available, additional services will become part of the service statement. On the contrary, the Bill states there is no ongoing process. There is a time limit on appeals. After a certain period, one can no longer appeal, even though one may not have what one needs. How can the Minister of State present this as a work in progress? It is not. The Minister should consult those who advise him and question their motives. What he is telling us and what the Bill states are entirely different. It is the job of public representatives to articulate the feelings of people without a voice. This is not a Bill of which we will be proud.
The Deputy referred to people protecting the Government. The job of civil servants is to implement the decisions of the Government.
I grovelled the last time but this time I want to be clear. There are people advising the Minister of State. I do not know whether they are civil servants or external consultants. We do not have the required level of transparency such that I would know. Those advising the Minister of State have closed minds when it comes to disability issues. I am not trying to insult anyone nor am I trying to make enemies but this legislation is restrictive. I find it hard to believe the Minister of State is solely responsible for it as nobody is capable of writing legislation alone. Those advising him on this legislation have closed minds. That is a fact.
I ask the Deputy to confirm that she is not casting aspersions on any civil servant.
I am not casting aspersions on anyone. I do not know who advised the Minister of State. Whoever advised him did not adopt a very imaginative approach.
Civil servants implement the decisions of Government and do so to the best of their ability.
That is fine. Although sometimes it can be restrictive, I do not have a problem with it.
The Minister of State spoke about the macro issues before the select committee but if he is so sure about what he is doing, why is the Government's consultative group so strongly against the Bill? I have never seen such a strong statement. It describes the Bill as a betrayal of the hopes of people with disabilities and as fatally flawed. If the Bill is so good, why is that the reaction of the groups established to advise the Minister of State? This statement has not been issued lightly but follows a long thought process. It is the reaction of genuine people who are experts with years of experience. I do not know if the Minister of State has seen what his own consultative group has stated. If the experts state the Bill is fatally flawed, it is a serious issue. I am not attempting to score political points as the issue is too serious and deals with the most vulnerable people in our society who need our help and support.
I welcome the moves made on the provision of financial support and I am thankful the economy allows us to do so. We are all more enlightened now about people with disabilities and see them as people. The first point I made on the Bill was that the word "people" must be included in the Title.
Section 10(6) states that, without prejudice to the generality of subsection (2), in preparing a service statement the liaison officer concerned shall have regard to the factors listed within that subsection which we will debate later and perhaps change. A liaison officer must have a certain amount of independence to carry out his or her work. We know how pressures can be brought to bear on people in the health executive when preparing service statements. The Bill should give some protection to allow the liaison officer more independence and provide that pressure cannot be brought to bear on the liaison officer in order that he or she can properly carry out the functions of the job, but within the parameters the Minister of State is rightly or wrongly setting down in subsection (6).
The Irish Human Rights Commission, a highly respected independent body, strongly recommended to the committee on 15 November 2004 that the liaison officer should be independent in the performance of his or her functions. The Minister of State claims to listen to everyone but if he had listened to the disability legislation consultation group, it would not be up in arms now. He has also closed his mind to this proposal brought forward by the Irish Human Rights Commission.
I suspect the Minister of State has been sent here and told not to give an inch on the Bill. He has no discretion and is merely holding the line. By contrast, when Deputy Noel Dempsey was Minister for Education and Science, he listened to and engaged with Deputies on Committee Stage of a particular Bill. If our argument was strong enough, he agreed to consider it and returned on Report Stage with further amendments to change the focus of the Bill which was welcomed across the board as good legislation but that is not happening here. I question the Minister of State's authority to make changes.
We are getting into a general discussion. I want to return to amendment No. 103.
I take the comments on amendment No. 103 but it is important we realise when discussing the amendment and the Bill that groups such as NAMI which represents 28,000 people involved in services have genuine concerns and recently expressed criticism about the legislation.
The Minister of State spoke of the bad old days when there were increases of only €1 million in the budget which was both appalling and disgraceful. The most recent budget was enlightened and at the time I commended and thanked the Minister for Finance, Deputy Cowen, for his work. That does not mean, however, that we can take our eye off the ball and remove the focus from respecting people with disabilities and their rights as citizens. Approximately 3,000 people in the intellectual disability sector are on day care, respite care and residential care waiting lists. That is not a huge figure and the problem should be solved within one or two budgets but I am concerned that the piecemeal effect will be that despite the huge increase in resources, money will not be spent on the 3,000 people concerned.
Everyone in the House has a responsibility to listen to the valuable opinion of the Irish Human Rights Commission and other disability groups. The bottom line is that the Department of Finance's fingerprints are all over the Bill.
I do not propose to accept the amendment.
I move amendment No. 104:
In page 13, subsection (2), lines 39 and 40, to delete "a chief executive officer of a health board" and substitute "the Executive".
Amendment No. 104 was discussed with amendment No. 10.
Amendment Nos. 105 to 109, inclusive, are out of order.
I move amendment No. 110:
In page 13, subsection (2), line 46, to delete "health board" and substitute "Executive".
Amendment No. 110 was discussed with amendment No. 10.
Amendment No. 111 is out of order.
I move amendment No. 112:
In page 13, subsection (2), line 48, after "provided" to insert "without undue delay".
Amendment No. 112 was discussed with amendment No. 92.
I move amendment No. 114:
In page 14, subsection (4)(a), line 5, to delete “to”.
This is a technical amendment to correct a grammatical error.
I move amendment No. 115:
In page 14, subsection (4)(a), line 9, to delete “may” and substitute “shall”.
This amendment places a positive obligation on the liaison officer to request the council's assistance in preparing a service statement for a person with a disability over 18 years who is in need of an education service. The provision is similar to that contained in the Education for Persons with Special Educational Needs Act 2004 where the council can request the assistance of the HSE with an education plan.
On a point of information, this amendment involves a potential charge on the Exchequer and it is not in order for anyone other than the Minister of State to move it.
I strongly support this amendment. I welcome the fact that it places a positive obligation on those dealing with people over 18 years with disabilities.
Amendment No. 116 is out of order.
I move amendment No. 117:
In page 14, subsection (4)(d), line 22, after “writing” to insert “, within a specified timeframe,”.
Amendment No. 117 was discussed with amendment No. 37.
I move amendment No. 118:
In page 14, between lines 24 and 25, to insert the following subsection:
"(5) The liaison officer may appeal a decision of the Council under subsection (4) to the appeals board who may direct the Council to comply with the request or dismiss the appeal and the Council shall comply with a direction of the board.”
Amendment No. 118 was discussed with amendment No. 37.
Amendment No. 119 is out of order.
I do not understand why this amendment is out of order if an assessment has already been carried out under the 2004 Act.
Amendment No. 119 refers to the provision of education services for children. The amendment seeks to change the provisions in the Bill so that only where appropriate provisions are already contained in an education plan for the child under the Education for Persons with Special Educational Needs Act 2004 will the service statement not include provisions on education services for a child. The effect of the amendment would be to require the statement to include these provisions. It therefore has the potential to raise a charge to the Exchequer.
It is possible to do so separately but not all at once.
Amendments Nos. 120 to 123, inclusive, are out of order.
I move amendment No. 124:
In page 15, subsection (7), line 6, to delete "copy of a service statement" and substitute the following:
"service statement shall be prepared without undue delay and a copy thereof".
I move amendment No. 125:
In page 15, subsection (7), line 7, to delete "chief executive officer of the health board concerned" and substitute "Executive".
I move amendment No. 126:
In page 15, subsection (8), lines 14 and 15, to delete all words from and including "chief" in line 14 down to and including "concerned" in line 15 and substitute "Executive".
I move amendment No. 127:
In page 15, between lines 20 and 21, to insert the following subsection:
"(10) A liaison officer shall review the provision of services specified in service statements.".
The liaison officer is charged by the chief executive officer to produce a service statement. Does the Bill contain a timeline within which preparations must begin or be completed? The timeframe appears to be unclear, although I may have missed the reference. If the liaison officer is extremely busy, he or she may delay starting the statement for up to four months. How long will it then take to furnish the document?
Is there an onus on members of the executive and others to co-operate with the liaison and assessment officers? This matter struck me just a few minutes ago. If the liaison or assessment officer asks for information or assistance, it will be important that officials of the HSE co-operate. The Bill is unclear on whether this must be done. Members of the HSE may work under pressure and be involved with internal politics. The Minister of State might bring forward wording on Report Stage to the effect that assistance would be forthcoming when a request is made by the liaison or assessment officer. A liaison officer who is preparing a service statement may find it frustrating to be fobbed off by a high official of the HSE and told to return the following week for the necessary information. The Minister of State should explore the issues of responsibility and reasonable timeframes, including the determination of who decides on them. The preparation of these statements may be simple or complicated.
A serious look at section 10 will reveal it to be the money saving section of the Bill. Let us pretend that this Bill will perform all the tasks the Minister of State claims for it by allowing people more independence and the opportunities to become involved in society and to find employment. I agree with the disabled community when it says that the potential contribution by people with disabilities to the economy has not been realised. It will not cost as much as we believe. Contributions can be made if the right supports are put in place.
My amendment to delete section 10(6)(b) was ruled out of order because of the potential charge to the Exchequer. This is why I believe this section will contain most of the money saving elements. Paragraph (b) refers to “the eligibility of the applicant for services under the Health Acts 1947 to 2004”. What exactly is meant by “eligibility” and what are the criteria? Will eligibility be determined by the means test for a medical card or for disability allowance? Whereas section 10 is restrictive in other areas, for example, by setting out what the liaison officer cannot do, the wording for this paragraph is loose. The means test criteria for a child diagnosed with a disability differ from those for the general public.
What exactly is referred to by "services"? Will a minimum wage earner or someone earning €50 more be over the limit? Will someone on disability allowance earning an additional €100 be over? As with the Ombudsman issue, we need to know about this before voting on section 10.
I was not present on Tuesday and that might be just as well. The more I have listened this morning, the more frustrating it is getting. The Bill is fundamentally flawed, especially section 10. Part 2, which contains sections 6 to 22, should be rewritten from scratch. It is difficult to make minor amendments or suggestions. On Report Stage, I will table a substantial amendment to delete and replace sections 6 to 22. This will fundamentally refocus the Bill in line with what was suggested by the disability legislation consultation group, DLGC, which called for the establishment of an independent disability support service and all that flows from that. That is covered in section 10 among others. That is the only way we can give those who are disabled the rights they deserve. The Bill is formulated in too bureaucratic a way. The proposals are tied too much to the health service. The proposed structures are not independent and I do not believe they will realise or deliver on the needs of the disabled community in the near future. The Bill does not represent the way we should be planning.
Even now, we still have an opportunity to change the legislation. It is a pity that, from what I have heard from him so far this morning, the Minister of State does not seem intent on doing so. It is as if everything the Minister or the Government produces is fully correct and we are all wrong and the disabled, the advocacy groups and some of the legal advice that some individuals have received is wrong. It is as if the Minister of State is infallible. I do not think that is the case. If we proceed with the Bill and with section 10 in particular, we will create a bureaucratic maze. In a few years' time, we will be admitting that we have produced a monster which eats up all the money that could instead have been invested in services or assessments. There will be service statements, liaison officers and all the rest of the bureaucratic maze. I will propose a major amendment in the hope that, even as late as Report Stage, the Minister of State might decide the Bill can be amended.
I intend to table an amendment to section 10(6)(e) on Report Stage to reflect the new health structures and financial arrangements provided under the Health Act 2004. The issues are mainly technical, and relate to the Vote of the Health Service Executive, which has yet to be finalised.
An amendment on the timescale has been referred to by Deputy Stanton. It concerns the words "undue delay". The actual timescales will be provided for through the service statement under the regulations. Time limitations will apply.
A point on eligibility was made by Deputy Lynch. All health services are governed by eligibility. The medical card is the main form of eligibility, and it applies to people with disabilities. Therefore, anybody who qualifies for the medical card gets services. There are different levels of qualification for services for people who do not qualify for a medical card. The same criteria of eligibility that apply across the health service apply in the case of disabled people.
This is why I tabled my amendment. If the intention of the Bill is to encourage people back into society and the workforce, no one or very few people will be eligible for the services provided by the Health Service Executive. I have a major difficulty with that. A paper was produced about two years ago on the cost of disability. It said that being disabled had a particular cost relating to lifestyle, transport, heating, medical bills and so on. That is never taken into consideration when eligibility tests are put in place. I need to know whether the first thing garnered from the interview with the assessment officer is the person's eligibility. Will the plan proceed if a person is not eligible? Might it be possible for it to take place only for people to discover later that they cannot get the services because they are not eligible? There is no point in people being registered as disabled if that is the case. We all need to know about this as it is vital to the proper planning of society. What is the point if people are found to be ineligible for any of the services set out in the Bill? Will the first thing to be determined be eligibility or will that be determined at a later stage? It seems to me only sensible to——
There is a simple answer to that. At the moment, eligibility criteria are laid down. People know their status and their eligibility. There is no issue and the status quo continues to operate.
I am not certain that people know about the eligibility criteria under the Bill.
The Bill does not change the situation with eligibility. The normal eligibility criteria that apply in the health service will apply under the Bill.
The Bill will change everything, however, and that is even according to the Minister of State. Therefore, it must also deal with eligibility criteria. The Bill is about changing the world for people with disabilities. That is what it should be about and it is what we are about. However, everything within the Bill depends on eligibility criteria that have been in place as long as I have been active and thinking in politics. If those criteria remain, that virtually wipes out half the people who feel they have an entitlement to particular services under the Bill.
I support Deputy Lynch on this important matter. Section 10(6) states: "Without prejudice to the generality of subsection (2), in preparing a service statement the liaison officer concerned shall have regard to the following”. There are then six items after that. The first one, “the assessment report concerned”, will have already been produced. The matter of eligibility does not arise there. Any citizen can get an assessment report, as we clarified previously. People can ask for one and they will get one, even if they are not entitled to a particular service, provided resources are not an issue. That is not clear. The DLCG is certainly not clear about the matter. The second factor is “the eligibility of the applicant for services under the Health Acts 1947 to 2004”. It is important that the Minister of State clarifies this matter. If it means that only those with medical cards will be eligible for services under the Health Acts, that means everyone else is ineligible. What the Minister of State should do, if I can be so bold as to suggest this, is to provide the committee with a comprehensive brief on what subsection (6)(b) is all about and who is eligible under the Health Acts. Subsection (6) provides that “the liaison officer concerned shall have regard to the following...”. He or she must not only have regard to it, he or she must do it.
Yes.
We do not know what the approved standards and codes of practice will be but I assume they will be positive. The issue of the practicability of providing the services identified in the assessment report is major. Many groups are concerned given that the practicability of providing the services identified in the assessment report is so open. It does not put an onus on the Health Service Executive to make an effort. If the HSE says it has no wheelchairs, therefore, it is not practicable to provide a bed or whatever. It does not put an onus on the executive to make an effort to get the bed. As a result of the practicability of providing services, it does not have to do so if it does not wish. There is a way out in that paragraph.
In regard to subsection (6)(e)(i), I can understand what the Minister of State has said that the provision of the services should not result in net expenditure by the board in excess of the amount determined by the Minister. The hope is that enough money will be provided by the Minister to ensure that does not arise and also, as provided in subparagraph (ii), that it would not result in the indebtedness of the board exceeding the amount specified by the Minister pursuant to that section. If enough funding is provided, those issues will not arise.
The other issues and certainly the issue of the eligibility of the applicant for services under the Health Acts 1947 to 2004 will arise. I understand that any citizen is entitled to a public bed in a public hospital.
If they can get a bed.
There are other services that a person with a disability may want. How would a person become eligible for a personal assistant? Where is the eligibility clause? That is a real need that a person with a disability may want. What is the requirement to become eligible for a personal assistant and which of the Health Acts 1947 to 2004 apply? This is the kind of detail that should be contained in a briefing document from the Minister to help us tease it out. All of us have reservations but the Minister, in good faith, can have this section passed. When it is enacted, we may find there are various trap doors, barriers and high jumps to be encountered to become eligible. It is important that this section be clarified without undue delay. There is a reference to the Health Acts 1947 to 2004. I do not know how many Health Acts there are. Given that people must be eligible, how are they eligible?
If we are open and honest, this Bill is about changing the goalposts as they previously existed for people with disabilities. That is what we all expected from the Bill. One cannot have enshrined in it an eligibility criterion which relates back to a system which the Minister of State agrees did not serve people with disabilities well. How does one qualify for a personal assistant if one has a job when the personal assistant is a necessary part of one maintaining that job? How does one qualify for a hearing aid if one is profoundly deaf? If one is in need of a hearing aid, which is an expensive item, and has a job, how does one qualify? It appears that one must be living in poverty to become eligible and that people with disabilities will have to get over this hurdle.
The previous Minister for Social and Family Affairs sent a circular to community welfare superintendents stating there was no discretion. Therefore, there is no flexibility in regard to eligibility for medical cards. The deletion of this subparagraph would not open the floodgates and would not give those with disabilities carte blanche because many other hurdles must be overcome. My amendment which was ruled out of order dealt with this issue. For example, the hurdle of the liaison officer, in putting together a service plan, having to take into account what is available would result in a trickle as opposed to a flood. This is a money saving exercise. While there would be a charge on the Exchequer if it were removed, it should not have been included in the first place. If this Bill does what it is supposed to do, namely, to encourage people with disabilities back into the community and work, it will ensure that half of those with disabilities will not be eligible for any service.
As I have already said, the existing criteria for eligibility will continue. There will be no change.
In what way?
That is an issue we can find out from the Department of Health and Children. There is medical card eligibility and I am informed by the Department of Health and Children that for most services there is no charge. This Bill does not create any difficulties in regard to eligibility that would be different from the existing criteria. The Government is satisfied, given its amendments and the way in which the section is set out, that people will be adequately covered. We have no concerns on that score.
If there is no charge, why is the subparagraph included in the Bill? If what the Minister of State has said is correct, why not delete it? This section is crucially important. If it makes no difference, why is it included?
For most services there is no charge. There are services for which there is a charge for people who are not eligible under the medical card criteria.
May we have a list of the services for which there is a charge?
Yes. I will certainly ask the Department of Health and Children.
We need the eligibility criteria as well.
In so far as it is available. I call Deputy Stanton, to be followed by Deputy Ó Snodaigh, and then the Minister of State, after which we will go to a vote.
With all due respect, this is Committee Stage and this is a crucially important issue. We are asked to vote but we are not sure what we are voting for because the Minister of State cannot tell us the eligibility criteria. On the one hand he said it is the medical card. Medical card eligibility is restrictive and is based on income. I am aware there is a certain discretion on the part of health executive area CEOs. My experience is that if a family income level exceeds a certain amount, one is not eligible for the service. People must also return for regular assessment. Even if one has a permanent enduring substantial restriction or impairment, he or she must be re-assessed for the card regularly. We are discovering that the number of people eligible for services could be quite small and could equal the number who have disabilities and who have a medical card. If one does not have a medical card, one will not be eligible for services under the Bill. The Minister of State cannot tell us whether that is the case. If it is the case that one must have a medical card to be eligible for the services, I would like to know before proceeding further.
The fact that this was not raised by any Deputy to any degree on Second Stage indicates that the current situation is not causing a difficulty. Eligibility for services for people with disabilities is not a problem. The problem is that they are unable to get sufficient services. The existing eligibility criteria will not be made more difficult by this Bill and I am assured——
Will it make them any better?
——by the Department of Health and Children that there is no charge for most services for people with disabilities. I will inquire of the Department about the position on the areas mentioned, such as personal assistance.
I wish to draw the Minister's attention to the learned words of my colleague, Deputy Lynch, on Second Stage in which she questioned eligibility under the Health Acts. Even if it had not been questioned on Second Stage, Committee Stage gives us an opportunity to tease out these issues. Eligibility was raised previously and it is being raised now. I hope the Minister of State will have some information for the committee.
This section provides that a copy of the service statement will be furnished to the applicant but it does not state when it will be furnished. The Minister of State has tabled an amendment which provides that the service statement shall be prepared without undue delay but it does not provide that the copy of the statement must be furnished immediately or as soon as possible. As a result, the service statement could in theory be held for an indefinite period. Perhaps we might deal with that on Report Stage to strengthen the section.
I hope the Minister of State used the break, as the committee members did, to check some matters. I knew I had raised the issue on Second Stage. Has the Minister of State changed his mind about this section? It is a crucial section and we need to examine seriously exactly who will be eligible. It is not logical to produce a Disability Bill providing for services and restrict it in this way. It is not logical to restrict it with regard to the service statement and to restrict it further with regard to eligibility. I do not believe that is the Minister of State's intent.
I have confirmed what I said with the Department of Health and Children. Most services are not subject to a charge and most schemes do not operate on eligibility criteria. The normal eligibility that applies in respect of health services applies in this Bill.
Will eligibility be examined first or will that only occur with the service statement? If I am a person with a disability and I apply to have an assessment carried out, will I be asked first if I am eligible? Will that be the first question? It seems logical if this provision remains in the Bill.
No. Most schemes do not have eligibility criteria.
Most?
Yes.
However, some do.
Yes.
Does the Minister understand my point? It is illogical to apply for an assessment, have it carried out and then discover one is ineligible. Would it not be logical to ask the person first?
That will be covered in the regulations.
We are not dealing with the regulations, we are dealing with the Bill.
On five occasions I have informed the Deputy of the situation. I cannot do any more than that.
I will call Deputy Ó Snodaigh and Deputy Stanton and then call the Minister of State for a final reply on the section.
To be honest, other than repeating what I have said, I have nothing further to add.
We must hear Deputy Ó Snodaigh's contribution.
I have another question for the Minister. In the eligibility criteria for the medical card, no cognisance is taken of additional costs related to disability. There is a slight discretion whereby it might be decided to deem somebody eligible and the medical card is granted on a year to year basis, and sometimes less than that, but it is rarely used. Is there any suggestion that, in this instance, the additional costs related to disability would be taken into account when determining eligibility for a medical card?
It would be helpful if, before Report Stage, the Minister would provide us with a written brief on what that eligibility section covers. That would be useful for the committee and for Members of the House. With regard to the practicality of providing services, if insufficient funding is available does the Minister envisage waiting lists being instituted to prioritise who will get what and when? If there is no money available and the assessments have been carried out, how will people know when or if they will get services? Will there be waiting lists on a first come, first served basis or will the people in greatest need be prioritised? How will that be resolved because it is not clear from the Bill?
There is no change in the eligibility that applies at present for medical card holders in respect of this Bill. Most services and schemes do not operate on eligibility criteria.
In respect of Deputy Stanton's question, the current situation whereby people are on waiting lists will obviously continue to prevail. In addition, each individual's unmet needs will be clear in the statement of assessment and the service statement.
Will the Minister of State provide the select committee with a written brief on that issue?
I will ask the Department of Health and Children to provide written clarification of what I have stated. There is no problem with this.
I thank the Minister of State.
We have gone as far as we can.
May I seek clarification?
Yes.
Does the Department of Health and Children set the criteria for medical cards?
Yes.
Amendments Nos. 129 to 131, inclusive, are related to amendment No. 128 and all may be discussed together.
I move amendment No. 128:
In page 15, subsection (1), line 29, to delete "may" and substitute "shall".
The substitution of "may" with "shall" would strengthen the section. The liaison officer has discretion and does not have to furnish a copy of the assessment report but if he or she has the consent of the applicant or an appropriate person, he or she can provide it where considered appropriate for a public body. Ultimately, the public body will have to be supplied with a copy.
Amendment No. 130 provides that where a public body is furnished with a copy of the assessment report under section 11(1), a member of staff of the body shall communicate with the applicant concerned or, where appropriate, the person referred to and the liaison officer concerned. This involves the substitution of "or" with "and". The assessment report, not the service statement, will be furnished. Will the Minister of State clarify whether the service statement supersedes the assessment report? Once the service statement is prepared, it will become the working document and the assessment report will not have a role. Public bodies and so on should only be concerned about the service statement at that stage because the assessment has been through the filter of the liaison officer who establishes what cannot be done and only allows through what is practicable, affordable or eligible.
My final amendment states, "The public body shall communicate with the persons in this subsection the information regarding services that may be provided by the public body that it considers that the applicant is entitled to, as soon as practicable after receiving the assessment report, but within a maximum period of 6 weeks after receipt of the assessment report.".
Amendment No. 129 in my name would place the onus on the agency to communicate immediately with the applicant, as opposed to allowing cases to drift along. Even if the response is negative, it is important that the communication should be made. The service statement will be in place and will not impose additional work other than ensuring the communication is dealt with in an efficient manner. That would tidy up the section. My other amendment is the same as Deputy Stanton's and is intended to ensure the liaison officer would receive a copy of the service statement in order that this provision is not loose similar to other provisions in the legislation. While the amendments are technical, they would ensure a good service, which is what we should seek.
I strongly support amendment No. 128. Amendment No. 131 is important in terms of ensuring public bodies communicate with persons regarding the services that may be provided. It is all very well to provide the assessment but it must be ensured, when the assessment has been completed, the person with the disability is provided with services. This refers to the ethos of the debate. While we differ with the Minister of State on the fundamental issues and refer to the rights of people, we must ensure people with disabilities are guaranteed services as a right. This should be done in a professional and caring way. I commend Deputies Stanton and Murphy on this amendment.
The provisions in section 11 look beyond the health and education sectors and provide a mechanism to allow relevant information to be supplied to facilitate access to other relevant services. The section is a significant and practical response to the concerns of the disability sector that the Bill should foster appropriate linkages to mainstream services.
Amendments Nos. 128 to 131, inclusive, would impose more specific obligations on liaison officers and mainstream public service providers contacted by a liaison officer in regard to the provision of services for an applicant. Section 12(1) allows the liaison officer, with the consent of the person with a disability concerned, to provide information for a mainstream service provider to help the person get necessary services from that body.
Amendment No. 128 would oblige a liaison officer to provide the information after getting the consent of the applicant. The amendment would go beyond offering the applicant the option of support by placing an onus on the liaison officer and the applicant to comply with the subsection. As sensitive personal information is likely to be part of the assessment report, I would not like a change to the subsection that would put a level of compulsion on the applicant. For these reasons, I do not intend to accept the amendment.
Amendment No. 129 would oblige a public body to communicate "forthwith" with an applicant. Such an obligation would be extremely onerous and unlikely to result in the worthwhile and considered response to which the applicant would be entitled. Therefore, I do not propose to accept the amendment.
Amendment No. 130 would oblige a public body to communicate with the representative of an applicant and the liaison officer. This may not be the most appropriate way to proceed as it would not be conducive to achieving clarity. I do not propose to accept the amendment.
Amendment No. 131 would require public bodies to communicate with the applicant or representative within a maximum of six weeks. I have sympathy with the intent of this amendment in trying to ensure prompt attention for applicants. However, as this provision would apply to a range of bodies which provide a variety of services, it is not possible to be so prescriptive as to whether the liaison officer or the representative of the applicant is to act on behalf of the applicant as to the timing of a response. That response will, in general, be governed by the arrangements for service delivery pertaining to the particular service.
I do not understand the Minister of State's explanation regarding amendment No. 129. It would not take from the considered response which I expect to be delivered to the applicant. The intent of the amendment is not to ensure a half thought out response would be sent. Nobody should do this but, after everything is considered, there should be communication with the applicant. The Minister of State thinks the officer could communicate too soon without having all the facts before him or her but that is not what we seek. We are asking that when everything has been considered, the response should be immediate.
I accept what the Minister of State said. I will withdraw my amendment.
On amendment No. 130, while the legislation gives a certain freedom to the public body, it is important that the liaison officer be kept informed of anything that might occur. It should be mandatory that the liaison officer is told what the public body is doing. The wording of the legislation would allow the liaison officer to be left out of the loop at the discretion of the public body. A copy of any communication with the applicant should have to go to the liaison officer as well. I accept that sensitive information could be involved in some cases but the liaison officer is a professional. It is important to keep the liaison officer informed for the purpose of facilitating or co-ordinating the provision of any service, which is the liaison officer's job.
One could foresee a situation where the public body could communicate with the applicant and the liaison officer may know nothing about it and could operate in parallel. To facilitate co-ordination, co-operation and a team approach, when a public body sends information to an applicant that they will or will not provide a service, the professional liaison officer should be informed and kept up-to-date as a matter of course, courtesy and professionalism. Changing the word "or" to "and" will have this effect. In this day and age, it is often just a matter of sending another e-mail or copy of a letter so that the liaison officer is informed.
While the section deals with exchanging information, this subsection makes it discretionary. I do not understand why, but it might suit a public body to keep the liaison officer out of the loop because he or she could be in a position to ensure that a service is delivered. It could cause all sorts of conflict. The liaison officer could become quite annoyed with a public body if he or she is not informed and the public body does not have an obligation under the legislation.
The liaison officer is probably the person who has direct contact with the applicant.
Exactly. It is important to change the word "or" to "and". The Minister of State said he sympathised with the proposal that the public body should communicate with the persons in this subsection the information regarding services that may be provided by the public body that it considers that the applicant is entitled to, as soon as practicable after receiving the assessment report, but within a maximum period of six weeks after receipt of the assessment report. Perhaps six weeks is too short but I am open to changing that. Perhaps we will change it to a longer period on Report Stage. If the Minister will consider changing it to a longer period, which would be more appropriate, I am willing to withdraw my amendment. Perhaps he will consider amendment No. 131 for Report Stage, but amendment No. 130 is very important.
Having to report to the two would not be conducive to achieving clarity. The intention is that the appropriate person acting on behalf of the person with the disability, if he or she cannot act on his or her own behalf, by and large, should be the person to whom the public body would refer back. Including the two people means there is no onus on either to act. In a normal situation, referring back to the appropriate person would mean the onus is on the appropriate person to respond to the public body and try to achieve what was necessary to achieve.
The other difficulty is that a response to the liaison officer would generate an unnecessary amount of work for that officer. This would mean that other important work the liaison officer should do would not be done. It is simply not conducive to clarity to have the public body respond to both. This issue was thought out very carefully. It is adequate to respond to "either or" so that the onus is on one person to act.
How will the liaison officer know action has not been taken? The Minister of State is making a dog's dinner out of this. Posting a letter is not a significant amount of work. Computers can print off ten copies of a letter and posting a letter to an additional person is not a big deal. The liaison officer is probably the person who will have the most direct contact with the applicant, therefore, it is very important that he or she is informed. An onerous task would be to try to resolve the Third World debt and clean the kitchen floor at the same time. Reading a letter about something with which one is completely familiar is not an onerous task. It is not such a big deal. This is simply a heavy-handed attitude of trying to keep everyone in the dark.
We are talking about a mainstream service. The intention is that the applicant, following the initial contact, will take responsibility for the relationship with the public body. Naturally, if the applicant does not get a response, he or she can refer to the liaison officer who can be brought back into the loop. It is the most efficient way to operate. It is not a question of keeping anyone in the dark. It is the most conducive way to achieving clarity and results.
Can we tease this out? If I am the applicant, and I do not get a response, I must go back to the liaison officer. The liaison officer must then try to track down the person who is responsible for responding. This is work, whereas if he or she had the letter, it would be straightforward.
It is a mainstream service in which the applicant or the appropriate person must take responsibility for liaising with FÁS or whoever. If the liaison officer is involved in every element of the mainstream service, he or she will get nothing done. This will mean neglecting far more important work for the various applicants, which should be done by the liaison officer.
The service statement can be modified and changed as time goes on, depending on the service provided and as resources become available. I assume the liaison officer will be responsible for this work and he or she will have a file on each applicant. He or she will get the assessment report, provide the service statement, liaise with all the public bodies and so on. It is important that the file is completed so that when the liaison officer checks what is happening in regard to John Murphy there will be a complete file and he or she will know what services are being provided, what communication has taken place and if he or she comes back into the loop, he or she will immediately have all the information required and not have to seek it out. This would be much more work than if the information is made available as a matter of course, courtesy and professionalism to the liaison officer who will have a file containing the information. If he or she needs to get back into the loop at some stage — I take the Minister's point that he or she may never need to get back in — if the service statement is to be amended, he or she should have the full information. This would not cost anything extra and would not impose any extra work on the liaison officer but it would mean that the information on the files would be complete. The liaison officer is an important part of this.
I move amendment No. 129:
In page 15, subsection (2), line 37, after "shall" to insert "forthwith".
I move amendment No. 130:
In page 15, subsection (2), line 39, to delete "or" and substitute "and".
I move amendment No. 131:
In page 15, subsection (2), between lines 42 and 43, to insert the following:
"(b) The public body shall communicate with the persons in this subsection the information regarding services that may be provided by the public body that it considers that the applicant is entitled to, as soon as practicable after receiving the assessment report, but within a maximum period of 6 weeks after receipt of the assessment report.”.
I move amendment No. 132:
In page 15, subsection (1), line 47, to delete "A health board" and substitute "The Executive".
This amendment was discussed with amendment No. 10.
I wish to clarify the group of amendments we are discussing. Amendments Nos. 134, 135, 138 and 139 are related. Amendments Nos. 136 and 137 are alternatives to amendment No. 135. Amendments Nos. 133 to 139, inclusive, are to be discussed together.
I move amendment No. 133:
In page 16, subsection (1), between lines 2 and 3, to insert the following:
"(c) specifying the aggregate needs identified in assessment reports which have not been included in the service statements,”.
Section 12 obliges the executive to maintain records regarding assessments and services provided under Part 2 in order to inform service planning. The executive is also required to present an annual report outlining service needs, timeframes in which the services would be ideally provided and the sequence of such provision.
Amendment No. 133 will require that such information will enable the identification of needs which are not being met by services. This will enable the executive to review the way in which resources are allocated with a view to ensuring maximum output can be achieved.
Amendment No. 135 requires that the report to the Minister will provide within a set timeframe of six months and will also include information on the likely cost of meeting service needs. This is a substantial development providing a transparent means of future planning for service development and delivery to facilitate a progressive response to real needs. It will enable greater efficiency and management of resources, which will be reflected in improved service levels on the ground over time. I believe that the amendments capture the principles sought in amendments Nos. 134 and 136 to 139, inclusive, and therefore do not propose to accept these amendments.
I do not accept the proposal for a national register of unmet needs proposed in amendment No. 139. Section 12, as amended, will ensure such information is available. We already have a national database for persons with intellectual disability and autism, with a further database on physical and sensory disabilities also being progressed. I am satisfied that the databases combined with the arrangements in the Bill are more than sufficient.
Regarding amendment No. 135, when a person or the Department gets the national statement of unmet needs, does the Bill define a timeframe for their provision?
This is a very important and useful set of amendments. In his two amendments the Minister of State has taken on board the spirit of the amendments from this side. Amendment No. 133 would insert the following: "(c) specifying the aggregate needs identified in assessment reports which have not been included in the service statements,”. What is meant by “aggregate needs”? For example if 700 or 800 people in a Health Service Executive region require a particular service such as wheelchairs, would the aggregate in the report specify this kind of matter? Will any provision be made that deals with individual applicants and their unmet needs? I welcome mention of “the periods of time ideally required for the provision of the services, the sequence of such provision and an estimate of the cost of such provision”. While aggregation is important the unmet needs of the persons assessed are equally important. Amendment No. 134 brings this matter down to the level of each individual by mentioning: “identifying the services which are required but which are currently unavailable, resulting in unmet needs of the persons assessed, with a view to making those services available”. This makes a distinction between the individual and the aggregate for an area. However, I welcome the Government amendments, which are quite good.
This section deals with the service planning of the HSE. Obviously the information contained in the aggregate needs, which will be quantified in monetary terms, will then feed into the new service plan of the HSE. The provision of resources to meet the requirements of the service plan then becomes a budgetary matter.
I welcome this change and I understand its logic. It is a good way to gather information that could not be available without such a process. While the amendment is good, it is not clear as to whether the Health Service Executive at a regional level will be obliged to address the gap in the service plan for the year or whether it will simply inform the Department and rely on the Department to do so. For example, if speech therapists or psychologists were needed, I do not believe the Health Service Executive at regional level could address that need. It could advertise and get additional money for recruitment but the issue could be the need to get more speech therapists or psychologists qualified.
It will feed into the service planning of the HSE on a national basis. As the service plan deals with work to be carried out in a particular year, the unmet need will not be addressed in the plan. However, the information on the unmet need will obviously be used towards service planning and therefore at national level the HSE will be in a position to establish the total unmet need and the total cost of that unmet need. It then becomes a budgetary issue between the Department of Finance and the HSE as to the amount of money to be made available towards meeting that unmet need. This will then go into the service plan for the year.
In respect of Deputy Stanton's question, the aggregate need will be the sum of all the individual needs. I again emphasise that that will be quantified in monetary terms and the estimated cost will be made available six months after the end of the year. The individual needs will not be included in this. In other words no detailed individual needs analysis will be published. Clearly the individual needs will be available and will be known to the executive at a local level. As the Deputy has said this is a significant amendment. This is one of the areas we have agreed to change as a result of the views expressed on Second Stage and by the DLCG. At the end of the year a figure for the unmet needs of the disability sector will be produced and this will feed into the service planning for subsequent years. This is a substantial improvement and will identify for everybody across the spectrum in a very transparent way the unmet needs and the resources needed to address them.
As a vote has been called in the Dáil I will let Deputy Stanton finish on this point.
One of the criticisms we made yesterday was that the Bill only deals with health and education. Amendment No. 135 specifies that the Health Service Executive will submit the report in writing. How will educational needs be included? Will the executive have the experience to quantify education needs? The Minister of State said previously that other needs — including housing, social, transport and occupational needs — could be included in the assessment report. Will those needs be included or will the Bill address medical needs only?
Will the report be laid before the Houses of the Oireachtas when the Minister of State receives it? It is important to ensure it is to inform people about events.
While, for example, the assessed needs of a 20 year old — including his or her education needs — will be provided for in the Bill, the specific education needs of young children will be covered by the Education for Persons with Special Educational Needs Act 2004.
Deputy Stanton wished to raise an issue with the Minister of State.
The Bill provides that the Health Service Executive shall, after six months, submit a report and write to the Minister regarding aggregate needs. Did the Minister of State indicate that this provision relates to the aggregate needs of persons aged over 18 years? The Education for Persons with Special Educational Needs Act 2004 covered those aged up to 18 years, whereas this Bill is intended to provide for the educational needs of persons with disabilities aged over 18 years. It emerged during the debate with the then Minister for Education and Science, Deputy Noel Dempsey, that the Education for Persons with Special Educational Needs Act 2004 was the vehicle by which services would be provided for people in second level education until the age of 18 years. It also emerged that people with disabilities often have delayed experiences in school and are frequently obliged to remain in school longer as a result of their disability or impairment. These individuals might be 19 or 20 when they sit their leaving certificate examinations. This means that their education needs are met up to the age of 18 by the Education for Persons with Special Educational Needs Act 2004 but after that their educational needs must, I presume, be met by this Bill. Will those aggregate needs include educational needs? Such needs could include special needs assistance in school, a personal assistant in school, somebody to assist with transcribing or special computers or other technological aids. If those needs are not met by the service statement, will that kind of educational need be included in the report to be submitted six months after the end of each year?
People with disabilities who are in sheltered workshops or in training also have special needs. Will their needs also be included in the report? I presume their training and educational needs will come under the scope of the Bill, which deals primarily with health and education. I would like the Minister of State to provide some clarification on this matter.
Transport needs are important for people with disabilities, particularly if they live in remote rural areas. Will the HSE take that into account? Will mobility needs, employment needs and occupational needs also be taken into account? I presume that these will be covered by the initial assessment. Social needs are important for everyone. Will the HSE be in a position to liaise with other groups to ensure that a comprehensive report encompassing all needs will be made available? It is not clear how that will be done. There does not appear to be any mechanism for enforcing such an approach.
Will the Minister lay the report before the Houses of the Oireachtas when it is furnished to him? Will the Minister of State consider introducing an amendment on Report Stage to make that mandatory, particularly as the current wording is not clear? The Minister of the day could sit on this report and not publish it. It is not clear if it will be made available to the Houses of the Oireachtas.
The first part of the question relates to the various needs — educational, social, transport and occupational — of persons with disabilities. The second part relates to the report being laid before the Houses of the Oireachtas. I would like clarity on those points.
I have a question on the same issue. Will the Health Service Executive deal in full with the aggregated needs statement? How is it envisaged that this will happen? As Deputy Stanton said, if there are unmet needs in regard to education, how will they be identified? Will the HSE be in a position to state that it will only deal with the health aspects of an assessment? I do not understand how the process will work. The amendment is good but I do not understand how the HSE would identify areas where it would not have any responsibility.
It is quite simple. The Education for Persons with Special Educational Needs Act deals with the educational needs of people up to 18 years of age. This Bill will deal with those of people over 18 years of age.
How will the Health Service Executive deal with it if everything is to be included in the unmet needs statement?
Educational requirements for those over 18 years of age will be the responsibility of the HSE. The other question in regard to——
Will the Minister of State repeat that?
Any educational requirements for persons over 18 years will be the responsibility of the HSE but it will have the support of the National Council for Special Education in meeting that need. The assessment for people over 18 will include education requirements.
In reply to Deputy Stanton, if the need is assessed in the report under section 7 then that would be included in section 12. All unmet needs in the assessment, including education needs for people over 18, will be included in the aggregate unmet needs.
Perhaps Deputy Lynch can consider that matter.
The logic of what Deputies Lynch and Stanton have pointed out to the Minister of State is that the Health Service Executive can deal with the health aspects of the needs but there are many other aspects. Will, for example, the HSE be able to address all the needs, such as those relating to housing and the other services required? In my view, the HSE will not be able to do so.
The logical conclusion is that a body is required which will be able to do that. That is why the disability legislation consultation group stated that there should be an independent support service which would be able to take on board and collate the required information from a range of service providers, not just those within the health area, and produce a needs assessment that is not limited to a health service or medical model. The health aspects can be dealt with by the Department of Health and Children but what about transport, housing — which comes under the remit of the Department of the Environment, Heritage and Local Government — and the other areas to which Deputy Stanton referred? There is logic in having an independent disability support service which would encompass all of these areas rather than just one aspect of the needs.
It does include health, education and other personal services. The personal services would include transport where the person is attending a special school or sheltered employment facility but it would not apply to open employment.
I wish to tease this out some more. Is the Minister of State saying that the Health Service Executive will be responsible for the education needs of persons over 18?
I refer the Deputy to section 6(1), which spells out the provision of the education service. In terms of the assessment for people over 18 years, if the assessment includes some educational requirements that will be included in their statement of assessment. Where those services are not met, they will then appear in the category of their unmet needs.
When the report is being drawn up, it might be helpful if there was some mechanism whereby the council could liaise with the HSE. I note what the Minister of State said in respect of section 6(3), which confers additional functions on the council and states:
(a) to assist health boards in the assessment of adults with disabilities and the preparation of service statements;
(b) to consult with health boards, education service providers and such other persons as the Council considers appropriate for the purposes of facilitating the provision of education services to persons with disabilities in accordance with this Part;
(c) in consultation with the Minister for Education and Science and the health boards, to plan and co-ordinate the provision of education services to adults with disabilities in accordance with this Part;
(d) to assess and review the resources required in relation to educational provision for adults with disabilities.
However, the section does not refer to assisting with the aggregate report. Such a reference might be needed just to be sure about this matter.
The fear is that the Health Service Executive, being concerned with health, approaches assessments from a medical angle. One criticism of the Bill is that it is rooted in a medical, rather than social, model of disability. It might be necessary for it to be more broadly rooted and for it to state that the executive shall plan and co-ordinate the provision of education services to adults with disabilities in consultation with the council, as appropriate. This might be helpful. Perhaps the Minister of State will consider it on Report Stage.
I asked three times whether the report will be laid before the Houses of the Oireachtas when it is completed but received no reply. If it is to be laid before the Houses, how soon will it be after the Minister receives it?
That has all been stated in the Bill. The council must co-operate in respect of the assessment and the service statement.
Not, however, in respect of the end of year report.
The legislation refers to the aggregated needs.
Obviously, if it must co-operate——
It is not obvious at all.
If it must co-operate in the assessment and the preparation of the service statement, clearly——
It is not clear.
——the aggregated needs, which represent the combined results of each individual case, will automatically have been identified as a result of its co-operation.
The Minister of State and I know that people will examine this legislation to determine where their responsibilities lie and what they need to do. If it is not spelt out very clearly, they will state legitimately that——
It is spelt out clearly.
Will the Minister of State be putting in place any regulations in this regard?
There will be regulations but there will not be a need for regulations in respect of this particular area. It is quite clear.
The report will be submitted to the Minister for Justice, Equality and Law Reform.
No, it will be submitted to the Minister for Health and Children.
The "Minister" in the Bill has not been identified as the Minister for Health and Children. The explanatory memorandum implies that it is the Minister for Justice, Equality and Law Reform.
Line 4 on page 10 states that "Minister" means the Minister for Health and Children.
It states "the Minister for Health and Children".
What was Deputy Stanton asking?
When will the report be laid before the Houses?
The report will be published and, as is the case with any published report, it is obviously not an issue as to whether it can be laid before the Houses.
As the Minister of State knows, there is sometimes provision in legislation to——
There is provision for the report to be published. The Deputy asked whether it would be kept quiet. It will be published.
How soon after the Minister receives it will it be published?
Given that it will contain important information, no Minister would want to hold on to it for too long.
He or she might.
After careful consideration.
Does it state in the Bill when the report will be published, if at all, or how soon it will be published after the Minister receives it?
Yes, it will be published.
Does it state that in the Bill?
No.
No.
It will be published.
I move amendment No. 135:
In page 16, lines 5 to 10, to delete subsection (2) and substitute the following:
"(2) The Executive shall, within 6 months after the end of each year, submit a report in writing to the Minister in relation to the aggregate needs identified in assessment reports prepared including an indication of the periods of time ideally required for the provision of the services, the sequence of such provision and an estimate of the cost of such provision.".
I move amendment No. 140:
In page 16, subsection (1), lines 19 and 20, to delete all words from and including "chief" in line 19 down to and including "concerned" in line 20 and substitute "Executive".
Amendments Nos. 141 to 146, inclusive, and amendments Nos. 150 and 151 are related. They may be discussed together.
I move amendment No. 141:
In page 16, subsection (1), between lines 21 and 22, to insert the following:
"(a) the denial of a right to an assessment of need;”.
Section 13(1) states an applicant may, either by himself or herself or through a person referred to in section 8(2), make a complaint to the chief executive officer of the health board concerned regarding certain listed matters. One of these should include the denial of a right to an assessment of need. The Bill should provide a clear right in this regard.
The DLCG, in its Equal Citizens document, is adamant about this matter. Although we had this debate yesterday, it is still not clear that there exists a clear right to an assessment of need. It could be based on the availability of personnel or resources. If resources were not being made available to people to carry out an assessment, the HSE could say in September of a given year that its money had been spent and that it could not force the Minister to provide more. It could say it is not allowed to exceed its budget and is not, therefore, in a position to hire anybody to carry out an assessment. Consequently, one could argue that there is no right to an assessment. The applicant would have to wait if this occurred. It is important to allow a complaint to be made if there is a denial of a right to an independent assessment of need.
Amendment No. 143 requires the insertion of "(b) the contents of the assessment report provided to the applicant;” in page 16, subsection (1), between lines 23 and 24. If one is not happy with the assessment report, one falls at the first fence. I do not know whether there is any redress available if the assessment report is flawed. The Irish Human Rights Commission maintains that a number of gaps in the proposed system of complaints can be identified. It claims there is no explicit or unambiguous means to challenge the contents of an assessment. Perhaps the Minister will address this.
Amendment No. 145 states "In page 16, subsection (1)(c), line 27, after “contents” to insert “and adequacy”.” This concerns the contents and adequacy of the service statement. The amendment was suggested by ICTU, which is seeking to improve the effectiveness and comprehensiveness of the complaints process. It argues that it is important that the grounds for complaint be extended to include the contents of the assessment report and the adequacy of the service statement provided.
Section 13 gives individuals a right of complaint in certain circumstances, including the fact that the assessment may not have been conducted in accordance with the standards or contents of the service statement. Amendment No. 142 provides, therefore, a further ground for complaint where an assessment has not been completed within the specific timeframe under section 8(5). This new ground of complaint will strengthen the right of the individual to a timely assessment. It will also deal with the issue raised by Deputy Stanton whereby, in practical terms, while there is an independent assessment, it will be predicated on the general resource provision in the Bill. Given, however, that there is a ground for complaint that it must take place in a timely fashion that will be governed by the regulations, the assessment must be carried out.
From a practical point of view, resources should not be an issue in the carrying out of statements of assessment. If we cannot carry out these statements, we will not be able to provide services to any great degree. I am satisfied that there is an independent assessment of need that is strengthened by this additional amendment to put a timeframe on it and a new redress ground if the timeframe is not adhered to.
Amendments Nos. 141, 143, 144 and 151 seek to insert further grounds of complaint either where an assessment is denied or arising from the contents of the assessment. I am satisfied the Disability Bill already supports the right to an assessment. Any person who considers he has a disability can apply for an assessment as outlined in section 8(1). Amendment No. 142 strengthens this right by allowing a complaint on the ground I have just outlined. Those qualified for an assessment would, therefore, receive one. In the circumstances, I do not propose to accept amendment No. 141.
The assessment will be independent, carried out without regard to the cost of providing the services identified and in accordance with the standards devised by HIQA. If standards published by HIQA are not complied with, there is a ground for complaint. These standards will relate to the content of the assessment among other things.
Amendments Nos. 146 and 150 seek to include further grounds of complaint on the basis of the inadequacy of the service statement. Section 13(1)(c) already allows an applicant to make a complaint about the contents of the service statement. This could arise from a view that its contents are inadequate, that it does not meet a person’s preferences, that it is factually incorrect or for other reasons. The existing wording is sufficient to cover these varied circumstances, so a separate ground for inadequacy is not required. I do not propose to accept these amendments.
Amendment No. 144 seeks to delete paragraph (b) which deals with the grounds on which a complaint can be made. At this stage, we are dealing with the mechanics of the process. We still have not heard about the Ombudsman and the complaints officer. I was under the impression on Tuesday that the Minister of State would table an amendment on them.
It depends on the preference of the DLCG.
I made this point on Tuesday and I reiterate it now. This is deeply unsatisfactory. Either the Minister of State does something within the legislation or not and we must be made aware of that. There is still scope for him to return to the matter on Report Stage.
With respect to Deputy Lynch——
This means the Minister of State is going to insult me.
No, with respect, it was as a result of the vociferous case made about the independence of the appeals procedure that we decided to give this option. There was discussion earlier about the need for us to listen and respond. Rather than be prescriptive about this issue, I want to hear the views of the DLCG. I will do so tomorrow. If it is the DLCG's view that we should include the Ombudsman as the appeals officer, I am prepared to come up with an amendment to achieve that.
I understand that.
I want to hear the Deputy's views on the issue. Given her indicated desire that I should listen, I am leaving this open. I am willing to make the amendment. I believe the Ombudsman is a better option and I would like to see it in the Bill because it gives a greater weight to the appeals process. It denies access to the courts, which is provided for in the current appeals mechanism, but the moral weight of the Ombudsman in decision-making is far stronger than any court. I would choose that option.
In fairness, the Minister of State did not insult me.
I would never insult Deputy Lynch.
In seeking the deletion of paragraph (b), the issue is brought into focus. The paragraph states that a complaint may be made “if it be the case, that the assessment under section 8 was not conducted in a manner that conforms to the standards determined by a body referred to section 9”. It appears that a person with a disability who has been assessed can appeal every ground other than the fact that the assessment statement is inadequate. He or she could appeal on the grounds that the assessment officer was late, was rude, that there was no access to the building or that it did not take place within a certain timeframe. He or she could appeal on almost every ground except that the assessment statement is not adequate and does not contain what he or she needs.
That is incorrect. The person can appeal the service statement if it does not accord with the standards laid down by HIQA. That is significant.
That is another ground for appeal but the person cannot appeal the fact that a service statement does not meet his or her needs.
Before we break, I want to let Deputy Finian McGrath speak because he has tabled two of these amendments.
Amendment No. 150 states:
In page 16, subsection (1), between lines 32 and 33, to insert the following:
"(e) the adequacy of the service statement.”.
I also tabled amendment No. 151, which states:
In page 16, subsection (1), between lines 32 and 33, to insert the following:
"(e) the contents of the assessment report provided to the applicant.”.
I am glad the Minister of State is meeting the DLCG and listening to its views. That is important. We must listen to the people who have experience and have strong views but who are professional in their approach. I commend the Minister of State on that.
Shall we return to this topic?
Maybe I should clarify this issue now that it is under discussion. Will Deputy Lynch make her point again?
There are many grounds on which one can appeal to the appeals officer, the complaints officer, the Ombudsman, or whatever structure exists. One cannot appeal, however, on what is absent from the content of the service statement.
One can appeal the content of the service statement.
One cannot appeal on the basis of what is not in the statement.
That is correct. One cannot appeal what has not been included in the statement.
One can appeal only on the grounds that someone is obnoxious and treats one badly which no longer happens. One cannot appeal the absence from the service statement of the services recommended in one's assessment.
The Minister of State could decide to allow people to appeal to the Supreme Court but if they cannot appeal on the basis of whether they receive particular services, the appeal is pointless. It may give one an opportunity to let off steam when one is annoyed about certain matters but there is a difficulty when one cannot appeal the fundamental issue.
It is a difficulty but it is the case because the service statement is resource-based. That is the critical point on which the Deputy and I must agree to disagree. One can appeal the content of the service statement but one cannot appeal the unmet need between the service statement and the statement of assessment.
The Government's response is the multi-annual investment package being put in place to meet that unmet need by degrees. That is how the Government has chosen to deal with this unmet need. There is no other way to deal with this issue. I have held intensive discussions on this matter with officials in the Department of Finance and they have proved there is no other way to do this.
This is the only way in which the Department can do this while observing the principle of good governance and carrying out its role effectively. The Department would give the same advice to the Labour Party if it were in Government and it would be very hard to argue against the advice.
The bona fides of the Government's case are that, parallel with this legislation, which must take cognisance of the principles of good governance, is the strategy to provide the extra resources by degrees to meet those needs. The Deputy criticised the strategy and I appreciate her position but she must understand that is the strategy and the Government is committed to putting the resources in to meet those needs over the course of the multi-annual programme. That is how we intend to provide the services for people with disabilities who do not have them. We have proposed several significant amendments to this Bill to ensure those needs are treated properly.
May I ask the Minister of State another question?
No.
I have responded to the points made by the disability legislation consultation group and by the Deputies on Committee Stage. We have tried to respond positively to their criticisms.
We were discussing amendments Nos. 141 to 146, inclusive, and amendments Nos. 150 and 151.
I welcome back the Minister of State and wish to comment on amendment No. 143. The Minister of State has correctly pointed out that section 9 of the Bill deals with HIQA carrying out the assessment. Section 9 provides that where an application is made under section 8, the relevant Health Service Executive area shall ensure that the assessment is carried out in a manner which conforms to such standards as may be determined from time to time.
Under section 13(1)(b) the applicant can make a complaint about the fact, if it be the case, that the assessment under section 8 was not conducted in a manner that conforms to the standards determined, but there is no provision for making a complaint about the contents of the assessment report itself. The standards seem to deal with the way in which the assessment was carried out but not the end result. If a person is presented with an assessment report which states that he or she has a disability, lists what the assessment found and what should be provided, but that person does not agree with it there does not seem to be a mechanism to make a complaint. This is to be the bedrock on which all else will be based.
Are we dealing with amendment No. 152?
No, that will be dealt with separately.
I want to make the same argument I made earlier. It is important that an authority is informed about and deals with a situation where someone is treated badly in an appeals mechanism. The matters most fundamental in this are not included in the service statement, and it is incredible not to have such recourse. I understand the Minister of State's views that the need to build up capacity means resources can be introduced only when it is possible. What if someone knows a service, item, person or facility is available that would make his or her life better but this is not included? There is no mechanism to talk to an authority in that case. This seems too tight to allow for the necessary flexibility. We are talking about people who are entitled to these services. This is not a drain on the Exchequer or a charge on the public purse, it is about ensuring that what is available will be there and that redress will be provided.
Is Deputy Lynch discussing the service statement?
Yes. I wish the Minister and the DCLG the best of luck in their discussions tomorrow, and it is right that those discussions are ongoing. Has the Ombudsman been approached about taking responsibility for hearing complaints? Has she agreed to take on this role? Will she have an opinion on the restriction on complaints?
In response to the last question, the Ombudsman's office must be approached about this, but the intention would be to establish a new division within the office to deal with the complaints procedure and to provide the necessary resources. I am advised that the Ombudsman's office has no difficulty with that.
The ability of somebody to appeal or complain in the situation Deputy Lynch outlined is catered for in the Bill. A person can appeal the contents of the service statement to the complaints officer and can make the case that other services were not taken into account. As it stands, that can be investigated by the complaints officer or the appeals officer.
What about the contents of the assessment report? That is a different matter.
Assessments will be carried out in line with a set of standards which will be developed by HIQA and it is important to have a level playing pitch with a proper level of standards across the spectrum so that everyone can expect to be treated equally. If the statement of assessment does not meet with HIQA standards, the applicant has the right to appeal. The insurance point for all applicants is that everybody will work to the same set of standards, which will be outlined and agreed. That will all be set down in legislation under the establishment of HIQA.
We appear to be getting clarity now. Not only will the method of conducting the assessment be appealable under section 13(1)(b) but the assessment statement will also be appealable.
On the point of it being in accordance with the standards.
But not the content. If an applicant is not happy that the content fully reflects his or her situation, the applicant has no avenue for appeal.
The assessment is an independent undertaking——
We know that.
——and it will be carried out in consultation with the applicant. Consequently, the applicant will have the opportunity, under the assessment procedure, to make his or her views known, indicate his or her preference for service and so on.
We know all of that.
The assessment will not be subject to availability of resources——
We know that also.
——and therefore there is no reason to believe that an independent assessment officer, with no barriers in place and in consultation with the applicant, would not produce a statement of assessment covering all the requirements. If it does not accord with the standards set down, of which the assessment officer has to be aware, that is as good a ground as any for appeal.
I take it I am right in saying that the final assessment statement is a final assessment statement unless the way it was arrived at was in some way out of synch with the standards? In other words, the actual statement when produced cannot be appealed to anybody.
No, but there is always the possibility that if there is a change in the person's circumstances——
I am talking about a case where there is no change in circumstances.
In the case of children, there will be a constant review of statements of assessment. There is always the possibility of changes being made.
If, God forbid, the Minister of State suffered some incident that led to a disability, an assessment officer arrived at his home to carry out an assessment, in conformity with the HIQA standards, and subsequently produced an assessment statement, with which the Minister of State did not agree because it did not reflect his actual circumstances, is the Minister of State saying, and I am sure he will correct me if I am wrong, that there is no avenue of appeal to anyone? If the assessment officer did that assessment in good faith but a disagreement arose between the applicant and the assessment officer over the final document produced——
There is no honest broker to whom the applicant can appeal.
——there is no avenue of appeal.
I am trying to explain to the Deputy that the standards will set out the kind of service to be provided in each set of circumstances for a person with a specific disability. The standards will be the benchmark against which the assessment of requirement will be set. If the assessment officer in the carrying out of the assessment does not accord with those standards, the person has the right to appeal, but it is important to remember that the assessment officers are statutorily independent, in the same way——
We know that.
——that we have statutorily independent officers in various Departments whom we all know operate independently of the systems in those Departments. The assumption is being made that the assessment officer will not want to do what is best.
That is not true.
If there is not, I withdraw that comment. There is no reason to believe that an assessment officer would want to produce a statement of assessment which does not——
That is not the point either.
If the Deputy is accepting my premise, I will answer the question. There is no need in those circumstances for a person to appeal the statement of assessment.
That does not answer the question. Is there a mechanism in place to appeal the final statement? If everything was carried out-----
The answer is "Yes" if it was carried out against the standards set down in HIQA.
If the standards were adhered to but the applicant was still not satisfied that the statement meets his or her needs, is there a mechanism of appeal?
There is no other reason for an appeal at that stage if the officers comply with the standards that will be set down.
I do not know whether there is a deliberate misunderstanding about this issue either on our side or that of the Minister. I do not believe any assessment officer would produce an assessment statement that deliberately set out not to provide the very best service or comply with the standards but the Minister talks as if we were living in Utopia and everything was perfect. Mistakes will happen. I can give an example of the way something like that can happen. The Minister and his officials have spent two years talking to the DCLG yet he produced this Bill. I do not know who was listening or what was said but someone lost the plot half way through those negotiations because this is not the Bill the representatives of that group wanted. With the best of intentions these things happen and when they do, which may be rare, there must be some mechanism for redress for the person involved.
That is the official advice I have been given here, which is the same as what I have just said in another way.
We are shocked and surprised by that.
The approach in respect of the assessments is benchmarking. If someone gets the benchmark service, there is no reason to appeal.
What if the person does not get it?
If the person does not get it, he or she can appeal. That is what I have been trying to explain for the past five minutes.
That is not what is in the Bill.
There appears to be some conflict on this but it will be written into the minutes that the Minister is saying that there is——
Section 13(1)(a) and (b) refers. The language could not be any clearer.
Section 13(1)(b) states: “... was not conducted in a manner that conforms to the standards determined by a body ...” but “was not conducted” is not what we are talking about. We cannot make our argument any clearer. We are not talking about the conduct of the assessment. We are talking about the content and the purpose of my amendment No. 144 was to remove that section. I understand the Minister is getting official advice but I suggest it is wrong.
I suggest, with due respect, that the Deputy is misunderstanding the position
There is a difference of emphasis and opinion on this.
It is quite clear. If the assessment was not carried out in a manner that conforms to the standard determined by HIQA——
That is not what the section states.
The section states: "... by a body referred to in section 9”, which is HIQA. The person then has the right to appeal.
We are not talking about the way the assessment was conducted. We are talking about a statement that conforms to all the state-of-the-art, benchmark standards but does not contain everything the applicant believes he or she needs. We are talking about the assessment, not the service statement. If the person involved believes certain services are omitted from that statement, where will he or she go to address that?
I understand the Deputy's point but I also understand the point the Minister is making.
The Deputy is misunderstanding what will be included in the standards under the HIQA legislation.
I am not misunderstanding it. I just do not know what will be included.
That is my point. I cannot explain it in any more detail. There will be a set of standards outlining in great detail the service to be provided, for instance, the number of hours, various therapies and so on. Those standards will be set down and there will be considerable debate on the issue but those standards will be set down and they will be accepted as the standards to be reached for every individual involved. The assessment will be carried out and completed against that benchmark. If someone gets the benchmark service, there is no need to appeal. If they do not get that service, they have the right to appeal.
The Minister means the benchmark assessment.
Yes, the benchmark assessment.
Deputy Lynch wants to give people the right to appeal, which is not provided for in the legislation.
I am talking about an individual whose assessment met all the criteria the Minister mentioned but an element of which is not included.
Deputy Lynch is talking about an individual whose needs might be totally out of——
We will be happy to give a further detailed explanation to the Deputy at a later stage because she does not understand that this is a comprehensive mechanism that protects what she is requesting in the legislation.
The standards and so on have to be examined in detail, as the Minister said.
If an assessment officer recommends that a person with an intellectual disability is entitled to five hours per week respite care but the family and others believe it should be ten or 15 hours a week, can that family appeal in that case? If the assessment officer has adhered to the standards——
They have to adhere to the standards.
They have to accept the five hours per week. This is a regular complaint among the intellectual disability sector. The families are offered two hours respite when they are looking for six or ten hours.
The standards will set out what is acceptable and appropriate.
There is no problem setting out the standards and so on. It is when the service statement comes out and we do not have the resources to provide the required 15 hours. That is where the problem arises. We agree the standards will be high.
Will we get an opportunity to see them?
The Deputy will get an opportunity to see them. They are coming.
So is Christmas.
That will be part of the HIQA——
We must have the legislation before the standards can be put in place.
HIQA, the body that will draw up the standards, does not yet exist.
The HSE is currently working on standards. The establishment of HIQA is in progress and the proposal will come before the Oireachtas.
We have debated the issue fairly well.
I move amendment No. 142:
In page 16, subsection (1), between lines 23 and 24, to insert the following:
"(b) the fact, if it be the case, that the assessment under section 8 was not provided within the period of time specified in section 8(5);”.
I move amendment No. 143:
In page 16, subsection (1), between lines 23 and 24, to insert the following:
"(b) the contents of the assessment report provided to the applicant;”.
I move amendment No. 144:
In page 16, subsection (1), lines 24 to 26, to delete paragraph (b) and substitute the following:
"(b) the contents of the assessment;”.
I move amendment No. 147:
In page 16, subsection (1)(d), line 29, to delete “board” and substitute “Executive”.
I move amendment No. 150:
In page 16, subsection (1), between lines 32 and 33, to insert the following:
"(e) the adequacy of the service statement.”.
I move amendment No. 151:
In page 16, subsection (1), between lines 32 and 33, to insert the following:
"(e) the contents of the assessment report provided to the applicant.”.
I move amendment No. 152:
In page 16, lines 33 to 37, to delete subsection (2).
This refers to the time limit for appeals. Section 13 (2) states, "A complaint under subsection (1) shall be made by the applicant concerned or a person referred to in section 8(2) as soon as reasonably may be after the cause of the complaint has arisen and in any case within such time (if any) as may be prescribed under section 20”. The needs of people with disabilities will change just as our needs change and, in some cases, they will have greater difficulties than the rest of us. Providing for a time limit for complaints in this fashion is overly prescriptive and overly bureaucratic. At the end of the day, this will not result in a charge on the Exchequer.
Flexibility should be provided in the complaints procedure in terms of time for the person involved. It is all right for the rest of us. We can read statements and other documents and assess them quickly. Everyone cannot do that. In particular, people with intellectual disabilities need assistance and time to examine what is on offer. The Minister of State is being overly prescriptive and overly bureaucratic and I ask him to take the amendment on board.
Section 13(2) provides that a complaint must be made within timeframes to be specified in regulations under section 20. The amendment would mean there would be no time limit for making a complaint. Deletion of this provision would create an unacceptable situation where complaints might fall to be processed a long time after the HSE or education service provider has dealt with the matter in question. It would also have knock on effects for the appeals process. Section 13(2) states, "A complaint under subsection (1) shall be made by the applicant concerned or a person referred to in section 8(2) as soon as reasonably may be after the cause of the complaint has arisen and in any case within such time (if any) as may be prescribed under section 20”. There will not be hardship. There is no benefit in providing for an open ended timescale.
Will the Minister of State make the regulations?
No, they will be made by the HSE.
The difficulty we have is we are trying to legislate in a vacuum. The HSE might well provide in regulation that the complaint must be made within seven days. The Social Welfare Acts provide flexibility for late appeals. If the Minister of State made his feelings known in this regard, they might be provided for in regulation so that if a reasonable explanation was provided, a late appeal would be possible.
That is another matter. Section 13(2) states, "...after the cause of the complaint has arisen and in any case within such time (if any)...", which will be the subject of appeals. The Minister for Health and Children will make the regulations. I am anxious to provide information on the principles underlying the regulations before the Bill is passed. I have asked the Department of Health and Children and the HSE to provide this information.
I move amendment No. 153:
In page 16, subsection (1), lines 38 and 39, to delete all words from and including "chief" in line 38 down to and including "she" in line 39 and substitute the following:
"Executive shall authorise such and so many employees of the Executive as it".
I move amendment No. 155:
In page 16, subsection (3), lines 45 and 46, to delete "a chief executive officer of a health board" and substitute "the Executive".
Amendments Nos. 157, 158, 160, 162 to 164, inclusive, 169, 175 and 179 are related to amendment No. 156 and all may be discussed together.
I move amendment No. 156:
In page 16, subsection (3), line 46, after "shall" to insert "within 7 days".
This amendment proposes to define the time and to tighten it up. The Bill is loose in some areas and does not give any certainty in other areas. This amendment will ensure a proper timeframe in order that matters are dealt with as speedily as possible.
I wish to discuss amendments Nos. 157, 160, 163, 164, 169, 175 and 179.
Amendment No. 157 also refers to seven days and I will be open on that one. Amendment No. 163 is very important. We must be very sensitive to the needs of the families of people with disabilities and particularly when dealing with the complaints procedure. The family should be able to move around to another complaints officer within the month. This amendment would add some teeth to the legislation.
On amendment No. 158, there does not seem to be any timeframe within which the Health Service Executive must refer a complaint to the complaints officer. A complaint could be made to the HSE and possibly go from desk to desk, from office to office, from person to person, with no timeframe within which it must be passed on to the complaints officer. In theory it is possible that a complaint could languish in the offices of an executive for a month or six weeks or six months. There is no requirement in the legislation for the chief executive officer to pass it on. It does not even stipulate this should be within a reasonable timeframe or immediately or any other length of time. We suggest as soon as a complaint is received or within a maximum of five working days, it should be passed on. This is important because the complaints officer is independent in the performance of his or her functions and rightly so, but the complaints officer cannot act until he or she receives the complaint. The Bill states the CEO shall refer the complaint but it does not state how soon or when this will happen.
I refer to amendment No. 162. Section 13(5) allows the option of informal resolution of a complaint by the complaints officer where this is feasible. Amendment No. 162 is designed to cover the eventuality where this process breaks down, by requiring that the complaint is passed to a different complaints officer for formal investigation.
I note that amendment No. 163 is quite similar to amendment No. 162, save that it specifies timeframes. I agree that in such cases it would be inappropriate and unfair to the applicant if his or her case was to be investigated by the same officer but cannot accept this proposal for a timeframe. I will return to this matter in a moment.
It is interesting to note the varied timeframes sought for aspects of the complaints process in amendments Nos. 156 to 158, inclusive, 160, 163, 164 and 169, which range from within five days to a month to the general provision of a "specified timeframe". The variations expose the difficulty of pinning down a timeframe to suit everybody. Section 20 already allows for regulations to determine timescales for this process and I am satisfied this presents a more practical approach.
Amendments Nos. 160 and 163 seek to ensure that informal resolution of complaints will be concluded within one month. Setting such a stringent timescale could be detrimental to finding an effective and workable solution for the parties concerned, particularly in more complex cases. It could encourage a quick fix solution instead of achieving the best solution in the interest of the individual.
Amendments Nos. 169, 175 and 179 seek to require the complaints officer to make recommendations to specify a timescale for the implementation of their recommendations. The timescales for implementation of recommendations on assessments and preparation of service statements are already determined in sections 8 and 10. On the provision of a service, the service statement and if not delivered, the insertion of a time frame for delivery of the service, may give a non-compliant service provider extra time, to which he or she is not entitled under the section as published, during which he or she may continue to fail to provide the service concerned. In addition there could be a number of services in a service statement in relation to which different timeframes for delivery apply. I therefore do not propose to accept these amendments.
I note the arguments put forward by the Deputies. I am prepared to concede on amendment No. 157. I note the argument for a reasonable period of time and I am prepared to consider it as a possible amendment to be governed by the regulations. I will return to it on Report Stage.
Is the Minister of State accepting amendment No. 157?
I accept amendment No.157 and I will consider the other amendments in the context of "as soon as possible" and being governed by the regulations.
I move amendment No. 157:
In page 16, subsection (3), line 47, after "officer" to insert "within one month".
I move amendment No. 159:
In page 17, subsection (4)(a)(iii), line 10, to delete “chief executive officer concerned” and substitute “Executive”.
I move amendment No. 160:
In page 17, subsection (5)(a), line 16, after “complaint” to insert “within one month”.
I move amendment No. 161:
In page 17, subsection (5)(b), lines 20 and 21, to delete “chief executive officer concerned” and substitute “Executive”.
I move amendment No. 162:
In page 17, subsection (5), between lines 23 and 24, to insert the following:
"(c) Where a complaint is not resolved under this subsection, the complaints officer shall keep a record of the matter and send a copy thereof to the Executive who shall refer the matter to another complaints officer for investigation.”.
I move amendment No. 163:
In page 17, subsection (5), between lines 23 and 24, to insert the following:
"(c) Where a complaint is not resolved under this section a record shall be kept and the complaint referred to another complaints officer for investigation under subsection (6) within one month.”.
I move amendment No. 164:
In page 17, subsection (6), lines 25 and 26, to delete "investigate the complaint" and substitute the following:
"commence investigation of the complaint within one month".
I move amendment No. 165:
In page 17, subsection (6), line 33, to delete "chief executive officer concerned" and substitute "Executive".
I move amendment No. 167:
In page 17, subsection (8), between lines 44 and 45, to insert the following:
"(b) if the report contains a finding that the Executive failed to provide an assessment within the period of time specified in section 8(5);”.
This provision will allow the complaints officer to investigate when an assessment is not completed within the timeframe specified in section 8(5). I hope that this amendment will go some way to assuring applicants for assessment of their entitlement within the time set out in regulations. This amendment contains a drafting error which I will address by tabling an amendment on Report Stage.
I move amendment No. 168:
In page 17, subsection (8)(b), line 45, after “person” to insert “has or”.
I have a difficulty with stating that the person may have a disability. My amendment would change this to state that the person has or may have a disability. While it may happen on a rare occasion, I have a difficulty with the notion that someone without a disability would ask for an assessment, which is the implication of the present wording.
We have discussed this amendment already.
I was thinking that the Minister of State might accept it the second time around. I find the wording peculiar as it seems to assume that people with disabilities are in some way bogus. It should be changed.
I do not want to go too deeply into the detail of the amendment. Does the Minister of State wish to say anything?
I have nothing to add beyond what I have already said.
Which was "No".
I move amendment No. 169:
In page 17, subsection (8)(b), line 47, after “section 8” to insert “within a specified timeframe”.
I move amendment No. 170:
In page 17, subsection (8), lines 48 to 51 and in page 18, lines 1 and 2, to delete paragraph (c) and substitute the following:
"(c) if the report contains a finding that the contents of the assessment are inadequate, a recommendation that the Chief Executive of the Health Service Executive cause the assessment or a specified part of it to be amended or to be carried out as directed by the complaints officer;”.
This amendment was already discussed with amendment No. 10. Will the Minister of State accept the amendment?
It relates to the inadequacy of the assessment and the chief executive of the new Health Service Executive being able to request a further assessment.
The Minister of State replied to this amendment already.
No, I cannot accept the amendment.
I move amendment No. 171:
In page 17, subsection (8)(c), line 48, to delete “a health board” and substitute “the Executive”.
I move amendment No. 172:
In page 17, subsection (8)(c), line 51 and in page 18, line 1, to delete “chief executive officer of the health board concerned” and substitute “Executive”.
I move amendment No. 173:
In page 18, subsection (8)(c), line 2, after “standards” to insert “within a specified timeframe”.
I move amendment No. 174:
In page 18, subsection (8)(d), line 4, after “are” to insert “inadequate,”.
While I am beginning to think that moving these amendments is futile, I will persist nevertheless.
We will not give up.
Section 14(8)(d) states that the complaints officer can only deal with inaccuracies or errors in the service statement and not with the inadequacy of the statement. My amendment is designed to rectify this problem. I recognise that we have had a detailed discussion on the matter and I am not inclined to hold people up this late in the evening. While we could discuss it again for just as long, I do not intend to do so.
I believe the Deputy and the Minister of State would still be at odds.
I agree, which is why I feel I should keep my energies for another time. When this Bill is enacted, I know it will cause such frustration that people will be very upset about the issue. When the DCLG meets the Minister of State tomorrow, I am sure this will be one of the areas it will want to discuss. It would be nice for the Minister of State to be able to go to the meeting having agreed to allow a mechanism whereby the adequacy as well as the accuracy can be questioned.
As a result of this debate, it is important that the most appropriate standards are established in this area.
We discussed this matter in significant detail and I gave a broad-ranging response. Amendment No. 174 seeks to require that adequacy is to be judged by the complaints officer. The provision, as currently worded, allows for reasonable consideration whether the maximum level of service commitment has been achieved, which is sufficient.
I will not argue the point further.
The matter can be revisited in detail on Report Stage.
I move amendment No. 175:
In page 18, subsection (8)(d), line 6, after “concerned” to insert “within a specified timeframe”.
I move amendment No. 176:
In page 18, subsection (8)(e), line 7, to delete “a health board” and substitute “the Executive”.
Amendment No. 177 is out of order.
I move amendment No. 178:
In page 18, subsection (8)(e), line 11, to delete “health board concerned” and substitute “Executive”.
I move amendment No. 179:
In page 18, subsection (8)(e), line 12, after “appropriate” to insert “within a specified timeframe”.
I move amendment No. 180:
In page 18, subsection (9), line 14, to delete "be conducted otherwise than in public." and substitute the following:
"not be conducted in public unless*mdash;
(a) the applicant requests otherwise,
(b) the complaints officer believes a public hearing would be more appropriate.”.
Section 14(9) states: "Proceedings under this section before a complaints officer shall be conducted otherwise than in public." I am concerned over the procedures under which complaints would be heard exclusively in private. While genuine and valid reasons might exist why hearings should take place in private in certain cases and possibly in most cases, it may be appropriate to provide for public hearings in certain cases, including when an applicant may wish to waive his or her right to a private hearing. An applicant should be entitled to decide to waive the right to a private hearing, which he or she will have at any rate, and have a hearing held in public. The amendment provides the freedom and flexibility for an applicant to make such a decision.
Section 14(9) provides that complaints proceedings will be conducted in private. This is similar to other quasi-judicial systems. I am not sure how a public hearing would be of benefit in the circumstances and do not propose to accept this amendment.
While I accept the point that the circumstances I have described would probably arise only rarely, the Bill as framed makes no provision for them. Even if only one in 1,000 or 10,000 applicants were to seek to have complaint proceedings heard in public rather than in camera, he or she would be prevented from doing so.
Many quasi-judicial procedures, as the Minister of State described them, are held in public. There is a concern that hearings on certain matters, particularly proceedings involving children in the family courts, are held in private. This issue was brought to our attention by Down Syndrome Ireland which requested that in certain — probably rare — cases it may be correct and proper to give an applicant the freedom to waive his or her right to a private, in camera hearing. Under the Bill, such persons would have no such right and all proceedings would be held behind closed doors. The amendment proposes to give people the freedom to have such rare cases heard in public. Perhaps the Minister of State should consult Down Syndrome Ireland and other organisations before addressing the issue on Report Stage.
I support Deputy Stanton's position on the amendment. The proposed subsection (9)(b), which provides that a hearing may be conducted in public if a complaints officer believes a public hearing would be more appropriate, is important. The legislation should provide for these cases, even if they do not often arise.
It is normal practice for the initial phase of an appeals or complaints procedure to be held in private. It can be held in public at a later stage at the discretion of the appeals officer. I am not convinced there is a strong case to change the position in this regard which is common practice.
The Bill forbids any person at any time from waiving his or right to a private hearing. Even if he or she wants to have a public hearing, the proceedings must be held in private behind closed doors. The amendment would provide for a public hearing for those who seek one.
Does the Bill provide for an applicant to request a public hearing? Would it be appropriate to make such provision?
It is not provided for in the case of the initial appeal procedure because the position of another party to the appeal must also be taken into account.
Is the Deputy pressing the amendment?
Yes.
Amendment No. 186 is an alternative to amendment No. 181 and amendments Nos. 189 and 195 are related to it. Amendments Nos. 190 and 191 are alternatives to amendment No. 189. Amendments Nos. 196 to 199, inclusive, are alternatives to amendment No. 195. Amendment No. 212 is consequential on amendment No. 181. If amendment No. 181 is agreed, amendment No. 186 cannot be moved. If amendment No. 189 is agreed, amendments Nos. 190 and 191 cannot be moved. If amendment No. 195 is agreed, amendments Nos. 196 to 199, inclusive, cannot be moved. Amendments Nos. 181, 186, 189 to 191, inclusive, 195 to 199, inclusive, and 212 may be discussed together.
I move amendment No. 181:
In page 18, lines 18 to 49 and in page 19, lines 1 to 5, to delete subsections (11) to (13).
Section 14(11), (12) and (13) allow the executive and education service provider to refuse to implement the recommendation of a complaints officer. I am fully aware of concerns expressed by many groups about the complexity and bureaucracy of the complaints process. Amendment No. 181 provides for the deletion of subsections(11), (12) and (13) and thereby removes a layer from the complaints process with a view to simplifying the system by making it more efficient and user-friendly. I note the look of disbelief on Deputy Lynch's face.
Amendment No. 195 provides that the executive and education service provider can appeal the complaints officer's recommendations directly to the independent appeals officer where the provision of a service is at issue. The appeal will give the chief executive officer a right to be heard by the complaints officer in substitute for the right formally contained in subsections (11) and (13) which I propose to delete. Amendment No. 212 is consequential on amendment No. 181 and inserts the CEO into the mediation process. Amendment No. 195 will also make the process more accessible by allowing an appeal to be made in writing or in a form to the like effect. I note Deputy Finian McGrath's amendment No. 198 also has the same proposal which arises from a suggestion from the National Disability Authority.
Section 17(1) sets out the grounds for appeal by individuals regarding findings and recommendations by the complaints officer. The National Disability Authority has suggested the deletion of the paragraph referenced in the subsection and I am happy to accept its amendment. I note amendments Nos. 190 and 191 have the same purpose.
Amendments Nos. 196 and 197 seek to extend the timescale for making an appeal from six weeks to six months. I see no benefit in delaying the period for appeal for such a long time. As the time period is in line with that provided for in other legislation, I do not propose to accept these two amendments.
Amendment No. 199 refers to a longer period for appeals in some cases. While I do not propose to accept this amendment, I am disposed to reviewing for Report Stage the possibility of giving the complaints officer some latitude to take late appeals in exceptional circumstances.
My amendment No. 186 provides for the deletion of "as soon as may be" in page 19, subsection (13), line 3, and its substitution with the following: "within a specified time limit as shall be prescribed by regulations made by the Minister under this Act". This is a better, stronger amendment than the Government amendments because it gives teeth to the legislation. The inclusion of a specified timeframe is an important and positive change which will help address this aspect of the legislation.
The Deputy may also wish to speak to amendment No. 191.
Amendment No. 191 proposes in page 19, subsection (1), line 24, to delete "(d) or (e)” and substitute the following: “or a recommendation in paragraph (d) or (e),”.
Amendments Nos. 197 and 198 have also been tabled in the Deputy's name.
I am happy with the amendments.
The Minister of State has already indicated that he will not accept amendment No. 190. I accept what he said about introducing latitude for complaints officers on Report Stage. That would be a good approach to take as that type of flexibility would be important.
At this stage I am repeating myself. I am sure other Members are getting as bored with this as me. The intention of deleting paragraph (c) from subsection (1), page 19, is very deliberate and clear. It is about restricting the type of appeal that is possible. Whoever wrote the Bill evidently spent many hours trying to protect the Government when it would have been better to have ring-fenced services. However I accept what the Minister said about introducing some flexibility for appeals officers.
I am taking it out.
That is fine. I accept what the Minister of State said, but my point relates to whoever wrote it in the first place.
Deputy Lynch should be magnanimous.
My amendments are Nos. 196 and 197. Again, it was brought to our attention by a number of the groups that "weeks" should be changed to "months". It could happen for all kinds of reasons that people would not have the capacity to initiate an appeal in a six-week period. We should remember that we are dealing with people with disabilities. Illness could also be the cause of a delay in submitting an appeal. If a person has a mental illness, he or she may not be able to initiate an appeal. The reason we proposed to extend the period in which an appeal could be submitted was to give such people an opportunity to make an appeal. As it stands, appeals must be lodged in writing within six weeks of the decision to which they refer. Access to the appeals mechanism could be denied to a person who lacked the capacity to initiate an appeal during the six weeks following a decision, which might constitute a practical obstacle to the remedy.
We are seeking a more liberal and flexible approach to the time limit. It should not make a great difference whether it is six weeks or six months, except that the former limits the window of opportunity and, in effect, could result in a person with a disability being told he or she had missed the boat. An appeal could still be made within four or six weeks of a decision being made but changing the time period would offer more flexibility.
We should remember that we are dealing with people with special needs. The two organisations that brought this to my attention were Schizophrenia Ireland and Down Syndrome Ireland which was very concerned about this issue. I am sure I do not have to elaborate as to how the former might be concerned. There would not be any cost implications for the Department as no extra cost would be involved.
The intention of the amendment is to introduce flexibility to facilitate people. It is an attempt to take a humane approach to people's needs. A person could be out of action for six weeks and might not be in a position to make an appeal. I do not see why the Minister of State is holding firm on his position. It would be an easy amendment to accept or at least to consider. It may be the case that six months is too long a period but six weeks is a very short period, especially for somebody with a disability who may not be in a position to make an appeal due to illness.
Is the Minister of State willing to be flexible?
I accept the thrust of what the Deputy says. However, if a person is not in a position to appeal him or herself, he or she can have the assistance of an advocate. The time limit for appeal in this legislation is much more generous than in the District Court where the period of appeal is much shorter. The difficulty with a long appeal period is that it complicates the system and causes delay. However, I take the point that there may be exceptional circumstances. I am disposed towards reviewing the possibility of giving the complaints officer some latitude to take late appeals in exceptional circumstances.
Amendment No. 184 is out of order.
Why is it out of order? It states: "In page 18, subsection (12), lines 41 to 49, to delete all words from and including "unless" in line 41 down to and including "statement" in line 49."
It relates to the implementation by the health board or an education service provider of the recommendations made by a complaints officer. The Bill states the chief executive of the health executive area or the head of the service provision body shall implement the recommendations regarding services to be provided unless he is of the opinion that implementation would result in exceeding the budget or going into debt.
I believed the Minister of State's amendment was such that mine would have been allowed. I am not asking that anything be done about it but it should be noted that the two amendments are virtually the same. I do not believe mine is out of order.
There have been some substantial improvements to the legislation and I am glad that we, the Opposition, were able to agree with the Minister of State. He does not agree with us very often but we are very compliant and agreeable on this side.
Before the complaints officers are appointed, will the qualifications and expertise they require be laid down? Maybe I am missing the point but the legislation does not seem to suggest the complaints officer shall have a certain amount of experience. It appears that any employee of the Health Service Executive can be chosen as a complaints officer. It would be useful if there were some criteria determining the experience and qualifications a complaints officer requires. Will the role of a complaints officer be exclusively that of complaints officer in the executive or will he or she have another job? It is important to gain some understanding of the Minister of State's thinking on complaints officers.
Will the complaints officer work on his or her own or will he or she have staff? Will a complaints officer be appointed as each case arises and will this person have an office and staff in the Health Service Executive? The Bill states that complaints officers may be authorised but how will this operate in practice? If this is a secondary role, it is important those investigating complaints have experience and back up resources.
It is important that highly trained people sensitive to the needs of those with disabilities are appointed as complaints officers. Will at least 3% of the positions be for those with disabilities and will people with disabilities be able to apply for every post? I hope there will not be many complaints because with the provision of resources following the budget, that should not be the case. It is important, however, that there are quality people to deal with complaints and that those with disabilities should be encouraged to apply for these jobs.
Does the Minister of State's amendment cover amendments Nos. 182 and 184?
They relate to the implementation by the health board or of an education service provider of the recommendations made by a complaints officer. The Bill states that the chief executive officer of the health executive area or the head of the service provision body shall implement the recommendations on services to be provided unless he is of the opinion that the implementation would result in exceeding the budget or going into debt, or that it would be impracticable or impossible to implement or that the applicant was not eligible under the Health Acts. These amendments seek to delete all of those provisos. They therefore have a cost implication and potential to raise a charge on the Revenue.
Does the Government amendment cover amendments Nos. 182 and 184?
Those amendments fall because of the amendment I have moved.
That is fine. I am asking because sometimes the potential charge on the Exchequer is not always correct.
The Deputy is perfectly in order questioning it. There are questions about the selection of complaints officers.
That is a matter for the HSE. The complaints officers will be selected by it and the process will be outlined in the regulations it introduces. All the points on qualifications and training will be adequately covered by the HSE. People with a disability who are suitably qualified and trained will be welcome to apply.
That will be most important when they come together to discuss how they go about the complaints process.
If the complaints officers are to be independent in the performance of their functions, there should not be any conflict with any role they have as employees of the executive. A senior public health nurse might be appointed as a complaints officer. Will that position be stand-alone? How can it be independent if the person has another job or function?
The detail must be worked out but the complaints officers will be independent and they could not have a conflicting role with some other role they may have within the organisation.
Does this mean they may not have any other function except complaints officer?
I cannot say that. They may have roles other than complaints officer but I could not say if they will be full-time complaints officers and nothing else. Senior civil servants adjudicate on freedom of information requests. They have other roles but are independent in their freedom of information role.
The Minister of State put his finger on it when he said there should not be a conflict between the role of a complaints officer and any other job a person may have. If a person is a senior public health nurse and responsible for part of the assessment or service plan, he or she cannot be a complaints officer as well. That should be made clear. There should not be any conflict of interest.
Even if the person is working in the financial section, he or she must have expertise in dealing with these issues and, therefore, must have medical expertise. The Bill states that he or she will be independent in the performance of his or her functions. That might mean that if a complaints officer is working on a complaint, he or she will be released from any other job or role he or she has for that period.
Amendments Nos. 188, 217, 269, 271 and 272 are related to amendment No. 187 and amendment No. 270 is an alternative to amendment No. 269. They will be discussed together.
I move amendment No. 187:
In page 19, subsection (1)(a), lines 6 and 7, to delete “appointed by the Minister” and substitute the following:
"an officer of the Ombudsman appointed by the Ombudsman and accountable to him or her".
This concerns the independence of the appeals mechanism. We do not know if it is possible to make the amendment because there are difficulties discussing the issue. If the Minister of State will not have the Ombudsman as the appeals mechanism as his own preferred choice, I am uncertain if it is of benefit to discuss this. I feel, however, that the Ombudsman's office should be the mechanism we use. It is well respected and has a reputation that is second to none. It would do an extremely good job. Whether it is agreeable to that is anyone's guess because no one has written or spoken to it. The Minister of State said if the Office of the Ombudsman is involved there will be a separate unit within that office to deal with these matters.
That could be a useful resource for people with disabilities, not just for dealing with complaints. It would be foolish to restrict it to the complaints function. The Ombudsman's annual report is a useful tool and source of information. This could serve the same purpose. We lack information about people with disabilities, their numbers, range of disabilities and needs. I will discuss this issue as if I were trying to persuade the Minister of State, but at the back of my mind I know the true situation. That is a difficult position to be in. The Minister of State should accept this amendment which he said is his preference.
If I were to accept this amendment and the disability legislation consultation group does not want it, there would be a problem. The group will probably indicate tomorrow what it wants and we are prepared to go along with that.
The Minister of State said that the Ombudsman's office is favourably disposed to assisting in this matter.
If we get agreement from the disability legislation consultative group we will table an amendment to cover that and to bring the Ombudsman into the appeals process.
I support amendment No. 187 because I am heartened to hear that the Minister of State will accept a recommendation on these lines if the disability legislation consultative group makes one tomorrow.
On the broader issue of an officer appointed by the Ombudsman and accountable to him or her, the public and those working with, and families of, people with disabilities have confidence in the Ombudsman's reports. They would also have confidence in an officer accountable to him or her. It is important to highlight this trust. When one is in that situation, demanding a service, and the family is suffering or losing out, it is reassuring to see the Ombudsman filling that vacuum. I hope tomorrow's meeting between the Minister of State and the disability legislation consultative group goes well.
It is important to cut down on the bureaucracy as much as possible and the different layers creeping in here between appeals officers, complaints officers, assessment officers and service liaison officers. We need to telescope these levels. The Ombudsman's office is respected and independent. If we give the Ombudsman the role and authority to act as the appeals officer we must ensure that he or she is totally free of all hidden constraints in performing that role. I am inclined to support the amendment.
There would be no constraints on the Ombudsman. The principles that apply to the Ombudsman generally would apply in this regard too. In the same way there would be no recourse to the courts following a decision of the Ombudsman. I suggest that as we are leaving the option open to the disability legislation consultative group the amendments be withdrawn. I will return with amendments if the group agrees to the Ombudsman becoming the appeals officer. We can discuss that on Report Stage.
Can we not just suspend the discussion on this part of the Bill until next week when the Minister of State can inform us of the outcome of the meeting rather than waiting until Report Stage?
Unfortunately, I cannot do that because the Dáil directed that we proceed in this way.
We are all agreed that using the Ombudsman is the best option. It separates the appeals process from the statutory mechanism for redress. Will the Ombudsman, on receipt of a complaint, have the right to contact the executive involved and demand that the problem be rectified? Will the complaint to the Ombudsman be open-ended in the same way as it is if I lodge a complaint about the Department of Health and Children or whatever? Is the mechanism which the Minister of State plans to put in place the same as that involving a complaints officer, namely, that the complaint is confined to the process, as opposed to the content?
Everything would be the same as it is at the moment in respect of the appeal to the appeals officer. An appeal to the Ombudsman would replace the appeal to the appeals officer and the Ombudsman would have the power to investigate all the complaint but would have to take into account the reference to resources and so on. An appeal can be made and the Ombudsman can make a determination which must return to the executive.
I may be misinterpreting this but that is not what the disability legislation consultative group sought originally. It wanted access to the Ombudsman similar to that available to any other Department.
We have that but one cannot appeal to the Ombudsman on the basis that one is not receiving a service because of resources. One cannot appeal that in the present circumstances.
I understand that.
The process is the same.
The disability legislation consultative group wanted to be able to go to the Ombudsman in respect of what was missing from the assessment and the service plan.
The disability legislation consultative group is happy with the arrangement in Part 3. The same arrangement applies in Part 2. Under Part 3 the Ombudsman is the final person of appeal. The Ombudsman in Part 2 replaces the appeals officer appointed by the Department of Health and Children.
We shall know all next week.
This is a better system because it will have a greater impact on those who feel the need to appeal to the Ombudsman.
An example of the Ombudsman's effectiveness is the case where the Ombudsman said certain people were owed interest but the Revenue Commissioners disagreed. However, the Ombudsman's argument was so persuasive that the law was changed to meet that argument.
The Ombudsman has also often made recommendations to Government which have been ignored or turned down.
Yes, but the office has significant persuasive power.
That has been so only in the past two years.
The Ombudsman's moral authority is of greater significance than any referral to the courts.
Are Deputies Lynch and Finian McGrath withdrawing the amendments?
I will withdraw the amendment on the basis that we can revisit it on Report Stage.
On Report Stage I hope the Minister of State will allow us to recommit this section to a committee of the whole House because this should be teased out further. As the section introduces new and different provisions, it is a matter that would ideally be discussed on Committee Stage.
I have no problem in discussing it now.
As we are making such progress, we could adjourn now and wait for the Minister of State to have his meetings.
New amendments cannot be introduced on Committee Stage. These amendments must be dealt with first. Effectively, we are under an order from the Dáil to complete Committee Stage of the business.
The Minister of State must agree to allowing the Bill to be recommitted on Report Stage because we are speaking in a vacuum. Of the three parties involved in this section, one equal and important partner is not in the committee room.
If the disability legislation consultation group, DLCG, wants the Ombudsman as the appeals officer, I must table amendments to that effect which can then be fully debated on Report Stage.
This section may be changed if the appeals officer is appointed by the Ombudsman. However, I am happy with this.
The timing is the issue more than anything else.
I move amendment No. 189:
In page 19, subsection (1), line 24, to delete "specified in paragraph (a), (d) or (e) of” and substitute “or recommendation under”.
I move amendment No. 192:
In page 19, subsection (1), line 25, to delete "a chief executive officer of a health board" and substitute "the Executive".
Amendments Nos. 193 and 194 are deemed out of order.
Why is amendment No. 193 out of order?
It seeks to broaden the application of the Bill. By introducing reference to other needs and services to meet those needs, other than the health and educational needs and services specifically allowed for in the Bill, or by deleting the specific reference to health and educational needs, it thereby leaves the reference needs open to a much wider interpretation.
Why is amendment No. 194 out of order?
The same applies to amendment No. 194.
I move amendment No. 195:
In page 19, lines 31 to 38, to delete subsection (2) and substitute the following:
"(2) The Executive or the head of an education service provider may appeal to the appeals officer in the prescribed manner against a finding or recommendation specified in paragraph (f) of section 14(8) and, if such an appeal is brought, the appeals officer shall give the parties an opportunity to be heard by him or her and to present to him or her any evidence relevant to the appeal.
(3) An appeal under this section shall be initiated by a person referred to in subsection (1) or (2) within six weeks of the date on which the finding or recommendation to which it relates was communicated to the person, by furnishing a notice in writing in the prescribed form or in a form to the like effect to the appeals officer specifying the grounds of appeal.”.
I move amendment No. 200:
In page 19, subsection (3), lines 41 and 42, to delete "chief executive officer concerned" and substitute "Executive".
I move amendment No. 202:
In page 19, subsection (3), lines 44 and 45, to delete "chief executive officer of the health board concerned" and substitute "Executive".
I move amendment No. 204:
In page 19, subsection (4), line 50, to delete "health board concerned" and substitute "Executive".
I move amendment No. 205:
In page 20, subsection (10), line 45, after "appropriate," to insert "and shall, where requested by the applicant,".
This amendment aims to introduce an element of ownership for those with disabilities. It proposes for oral hearings to an appeal to be given when requested by the applicant. The Minister of State should have no objection to this as most hearings are held orally. If a person with a disability is allowed to bring an assistant or a person to act on his or her behalf, the hearings will probably be held orally. I deal with many social welfare appeals, many of which are oral, and I find them far more satisfactory as the discourse is more interactive.
If an individual is allowed to have an oral hearing as opposed to writing out an appeal, it gives a sense of ownership to the process. It will not cost more as a whole system is in place for it. Oral hearings will leave a more satisfied client than if the process was deliberately restricted or only the appeals officer was allowed to determine it. If I were an appeals officer, I would not want to have oral hearings, much preferring to deal with matters in written format as it is easier and less confrontational. However, for the client, oral hearings make more sense, making him or her feel much better about the process — how people feel about the process is as important as how the process is operated.
I support Deputy Lynch's amendment. Oral hearings are essential in allowing people, particularly disabled persons and their families, tell their stories. Oral appeals, as opposed to the written format, also convince those listening to the case. During the committee's hearings on the Dublin-Monaghan bombings, the victims' families told members that by being able to tell their stories, while not taking away the hurt and damage done, they appreciated people were listening to them.
The option should be available.
I am prepared to reconsider this amendment. However, I am not conceding it. There are issues where both sides appear at an oral hearing. The situation as it exists allows the appeals officer considerable discretion in matching procedures to the circumstances in each case. This goes a long way towards ensuring the needs of the applicant are given due regard. The overriding issue is that the appeals officer or the Ombudsman has statutory responsibility for the appeals process and must clearly be in charge of its determination. I am prepared to examine this amendment on Report Stage.
Will the Deputy withdraw the amendment on the basis of it being considered on Report Stage?
Yes.
I hope the Deputy will not need to table an amendment and that the Minister will table one.
I move amendment No. 206:
In page 21, subsection (11)(b), lines 16 and 17, to delete “chief executive officer of the health board concerned” and substitute “Executive”.
Amendment No. 207 is out of order as it involves a potential charge upon the Revenue.
I move amendment No. 208:
In page 21, subsection (12), line 26, to delete "that" and substitute "an".
Our advice is that it is not appropriate to give an artificially extended definition to the offence of perjury which is limited to perjury by means of evidence on oath or affirmation where there is no requirement to give evidence at an oral hearing before an appeals officer, or a note of affirmation. I can confirm that because I have a good deal of involvement in these matters. Accordingly, the giving of false evidence should be "an" offence rather than "that" offence, meaning perjury.
This is probably one of the critical areas of the legislation. I am not suggesting it is pivotal, but to define it as perjury is wrong. I deal with these oral hearings regularly and one can ask any of the appeals officers in the Department of Social and Family Affairs to confirm what I say. I have never attended a hearing at which someone has been asked to swear an oath, or affirm, in whatever way. It is not that type of hearing. I have no difficulty with it being an offence to give false evidence or to say something which one knows not to be true, but to define it as perjury is wrong.
The legislation provides that false evidence given before an appeals officer will constitute the offence of perjury. I believe the text as drafted adequately expresses the intent of this provision.
Up to this point we have been extremely political about this legislation. I appeal, not as a politician, but as someone who also has to operate in the real world.
That is a politician.
Yes, but we are different from other people. That is the distinction I make. To include this section is ludicrous. One is dealing with people who are probably going into oral hearings with great trepidation. I have seen grown men unable to speak at hearings. Such cases are very tense, and people do not want to be involved in them. People are going in to make their cases with this threat hanging over them. If the Minister of State is defining this as perjury, the officer must say so at the outset in the same manner as the Chairman of this committee must warn people from outside that they do not have privilege, while we do. People will have to be warned in advance about perjury. I accept that giving false evidence at a hearing is an offence, but not perjury. The Minister of State, rather than his officials, needs to make a decision on this matter.
Would "guilty of an offence" not suffice? Otherwise the meaning imparted is over-strong, considering the type of people who would go to an oral hearing, people who might be in need of assistance.
Yes, it is too strong. The Minister of State needs to make the call on this issue.
We shall look at it again.
I move amendment No. 209:
In page 21, subsection (15)(c), line 38, after “officer” to insert “or”.
I move amendment No. 210:
In page 22, subsection (17)(c), line 5, after "oath" to insert "or affirmation".
This is a technical amendment to reflect attitudes in today's society and society in the future. More and more people do not want to swear an oath and would prefer to affirm. This is a straightforward amendment. It involves no drain on the Exchequer. It is just a matter of getting things right. Some people prefer to swear on the Bible while others prefer to affirm that they will tell the truth.
I hope I am not getting soft, but I am prepared to reconsider the matter and have it examined.
Leadership and vision.
Amendments Nos. 211 and 218 are related and may be discussed together.
I move amendment No. 211:
In page 22, between lines 38 and 39, to insert the following subsection:
"(22) An appeal shall lie from a decision of the appeals officer to the District Court for the district in which the applicant is ordinarily resident or carries on any trade, profession or business.".
Perhaps the Deputy will withdraw her amendments.
In the spirt of how matters are proceeding.
This amendment is again about judicial remedy. I know this is not the direction the Minister of State wants to take, but if he looks seriously at the amendment he will see that it is not the type of amendment that leads us to the High Court or the Supreme Court, or to the type of case he is so worried about. The District Court is the softer option. I have no doubt that the Minister of State will reject the amendment and at this hour of the night I am not even certain I have the energy to argue with him. However, it is important that people feel they have means of redress. I have made this argument perhaps ten times today with regard to different sections. People need to feel they have some means of redress and that some independent assessor, in this case a judge, would make the decision. I would be fearful of saying the District Court is cheap, but it is an inexpensive way of getting a judgment or decision on certain matters.
I would hate to see cases in the District Court involving people with disabilities.
I would hate to see them anywhere.
I strongly reject the proposed amendment.
I do not wish to hold matters up, but I have one question on the section. In page 21, subsection (15) reads as follows:
The following shall be absolutely privileged:
(a) documents of the appeals officer and documents connected with the appeals officer or his or her functions, wherever published;
(b) reports or determinations of the appeals officer, wherever published;
(c) statements made in any form at meetings or oral hearings of the appeals officer by his or her officials and such statements wherever published subsequently.
Perhaps the Minister of State will outline exactly what that means since I am not clear.
A person cannot be sued because he or she makes statements or provides documents about another person.
Amendment No. 212 has been discussed with amendment No. 181.
I move amendment No. 212:
In page 22, subsection (2), line 45, to delete "applicant" and substitute "person who initiates the appeal".
Amendment No. 213 has been discussed with amendment No. 10.
I move amendment No. 213:
In page 23, subsection (5)(b), line 9, to delete “chief executive officer of the health board concerned” and substitute “Executive”.
Amendment No. 216 has been discussed with amendment No. 10.
I move amendment No. 216:
In page 23, subsection (5)(b), lines 13 and 14, to delete “chief executive officer of the health board concerned” and substitute “Executive”.
Perhaps the Minister will tell us how the section would operate in practice.
It would be the same model that applies in the equality tribunal.
I am sorry, but I am not familiar with that.
I am not too familiar with it either. If the parties both agreed, a qualified mediator would try to facilitate an agreement by mediating between the two sides and working out compromises. The outcome would be binding.
I take it we are talking about the applicant and the service provider — the educational provider or the Health Service Executive, as the case may be.
Yes.
Would the mediation officer be from the appeals office or the Office of the Ombudsman?
Yes.
Is that stated specifically?
The two sides agree on a mediator.
As far as I understand, the mediator exists and his or her bona fides are accepted by both sides, but I do not think they agree the mediator.
The mediator is an officer of the appeals office.
Both sides have to accept the bona fides of the mediator.
Yes.
Amendment No. 217 has been discussed with amendment No. 187, which was withdrawn.
I move amendment No. 217:
In page 23, before section 19, to insert the following new section:
"19.—A complaint or appeal regarding any decision or determination taken by any of the following—
(a) an assessment officer,
(b) a liaison officer,
(c) a complaints officer,
(d) a mediation officer,
(e) an appeals officer,
(f) a chief executive officer concerned, or
(g) any other head of a body which has undertaken to provide services under Part 2 of this Act, can be made to the Office of the Ombudsman, under the Ombudsman Act 1980, and will be dealt with in accordance with section 38 of this Act.”.
I will withdraw the amendment until Report Stage. The idea is that the Ombudsman should act as a buffer between the courts and everyone else. Now that the Ombudsman is being brought in at an earlier stage, one hopes that he or she will be able to do a better job.
I am not sure whether this section is constitutional. Under the Bill, it is proposed that an appeal to a court shall not lie against the determination of the appeals officer, other than an appeal on a point of law to the High Court. Does that mean that someone could not secure a judicial review of the decision of an appeals officer?
An appeal on a point of law is a type of judicial review and if the appeals officer behaved in a way not in conformity with his or her duties, one could have a judicial review.
This section is very like that in the original Bill produced in 2001. It means that people will not have redress to the courts regarding the substance of the decisions taken. I want to tease this out. It is a pivotal section for thinking on this.
In the old Act, section 47 was a more stringent provision. This Bill is more in line with quasi-judicial procedure. It is akin to the employment equality legislation.
Does this type of provision exist in other legislation, whereby people are barred from going to court?
In the Unfair Dismissals Act 1977 there is a similar provision. The position is the same in employment equality legislation and so on.
People are not allowed to go to court.
One is allowed to go to the Circuit Court under the Unfair Dismissals Act 1977.
Yes.
Can we as the Legislature stop someone from going to court by way of a section in an Act if he or she feels that justice is not being done and wishes to ask the courts to make a judgment on the case? Can we introduce such a provision in a Bill under the Constitution? Can we tell a citizen that he or she is not allowed to go to court and does not have recourse to the law to ask the courts to determine whether justice is being done and he or she is being treated fairly?
The Employment Equality Act 1977 was put to that test and that aspect was found to be constitutional.
Which element?
The element just mentioned.
Debarring people from going to court.
It was not found unconstitutional.
I do not understand what that means.
The question being put by the Deputy has been tested in the employment equality legislation and that aspect was found not to be unconstitutional.
Is there a provision in the Employment Equality Act which stipulates that one may not go to court?
Except on a point of law.
No, that does not arise anywhere. I believe an appeal from the High Court to the Supreme Court has to be on a point of law, but that is the only instance I am aware of where that arises.
It is also in the social welfare legislation.
That is entirely different legislation.
The same quasi-judicial principles are involved here.
That is not the case. I do not want to go into the matter too deeply, but under social welfare legislation there is an appeals mechanism and one can go to the District Court. As a matter of fact one may go to the High Court as regards social welfare.
Once all the appeals procedures have been exhausted within the social welfare code, up to the level of the chief appeals officer, it is then possible to have recourse to the High Court.
Normally if one goes to the High Court in a matter such as this, it is on a point of law. One would not normally go to the High Court on the substance of the case.
One would not go directly on this issue either.
On a point of law one would, though, if one felt one wanted a judicial review of the case.
Section 19 sets out that one can go to the High Court on a point of law. That is the same as in other legislation.
May we have clarification of that on Wednesday?
We may.
We can get clarification on that.
It is clarified, but we shall clarify it again.
There are many mechanisms in the Bill as regards assessment, service, complaints, appeals, the Ombudsman and so on. It is structured so that there are mechanisms in place to obviate the need for people to go to court. That is the way it is being set up. All these other mechanisms may be used along the way. The likelihood is that if somebody uses all these mechanisms, which do not exist at the moment, he or she will probably find that the case will be dealt with satisfactorily, one way or another. The number of cases to emerge, ultimately, that will still require some resolution will probably be very small. Members of the disability community always make the point that the last place they want to be is in court. Nobody wants to be there, it is a last resort, but this section removes that last resort. In effect, it bars that last resort from the citizen, bearing in mind all the other mechanisms that are built into the legislation to allow redress appeal and so on; and bearing in mind that the number of cases that might end up in court, if the system works, will be extremely small. It might be only test cases that are involved.
From that viewpoint I am puzzled as to why this section is necessary. If the Bill is as good as the Minister of State says it is, and which we hope it will be, why is it necessary to have this final belt, braces and hand grenade at the end of it so that people cannot opt for the courts, as they do at present? They are used all the time because the other mechanisms, as such, are not in place. We are putting these mechanisms in place, while also saying that one cannot go into court. The logic is, if the mechanisms and the legislation are to work as envisaged, there is no need to go to court, except in very rare cases, extremely small in number. In that regard this section is superfluous and should not be there. That is why we are opposing it.
That is the reason I favour the change-over to the Ombudsman and the limited access to the courts in this case is of little consequence. That is one of the reasons I proposed the Ombudsman as an alternative to this appeals procedure, with the mechanism of an appeal on a point of law to the court.
The Deputy's case is totally understandable, as is the Minister of State's. They are poles apart.
Not really. We have all tabled amendments that bring the Ombudsman into the process. The Minister has not done this yet, as such, but is talking about doing so. We have tabled amendments to bring the Ombudsman in, prior to section 19 coming into vogue, and specifically to ensure that he or she acts as a final filter or appeal mechanism before going into court, which nobody wants. If the Ombudsman is to act as a final court of appeal, the vast majority of cases will stop at that point. Perhaps one or two will still require a judicial review. An attempt is being made here to try to stop that.
If it is that serious, it is a matter for judicial review. That requires a High Court action in the first place. That is allowed.
Only on a point of law.
That is what a judicial review is about, on the basis of a point of law.
It will be on the substance of the decision.
No, it will not, and it never is, it is on a point of law only.
I could be completely mistaken, but I have always had the impression that judicial review is about the process of decision.
It is about a point of law.
Not necessarily.
It is.
