Amendments Nos. 2 to 4, inclusive, in the name of Deputy Penrose seek to amend the definition of "disability", to delete the words "substantial" and "enduring", and to substitute the word "condition" for "impairment" in order that an individual subject to a restriction, not necessarily a substantial restriction, in his or her capacity to carry on a profession or participate in social or cultural activities by reason of a physical, sensory, mental health or intellectual condition, not necessarily an enduring condition, would be deemed to have a disability. The effect of the amendments would be to increase the numbers defined as "disabled" and, by that definition, entitled to avail of the advocacy service to be introduced under the Bill. There is, therefore, potential for an increase in the charge on Revenue arising from these provisions. The amendments must be ruled out of order on that basis.
Citizens Information Bill 2006: Committee Stage.
Unfortunately, the Vice Chairman's first job was to rule my amendments out of order because of the age old problem of the Department of Finance deeming them to have potential to impose a charge on the Exchequer. Opposition members are hamstrung by it in addressing pertinent issues in legislation. Deputy Seán Ryan and I were anxious that the amendments would be discussed. As in the Disability Act 2005, the definition of "disability" in the legislation is extremely restrictive and we were seeking to provide a broader definition. The current definition has come in for particular criticism which we reflected in our amendments and we were hoping to improve it. Although amendments Nos. 2 and 3 have been ruled out of order, we hope the Minister will take cognisance of the issues raised. The use of the term "impairment" is regarded as outdated and offensive in certain circumstances. We also hoped amendment No. 4 would, by substituting the word "condition" for "impairment", effect a significant improvement and ensure the definition of "disability" would be broadened to incorporate the maximum number. We accept the amendments have been ruled out but I ask the Minister to establish whether their thrust might be incorporated into the legislation on Report Stage.
I do not accept the ruling. We are trying to broaden the thrust of the legislation because it is restrictive in endeavouring to address the requirements of people with disabilities. It would be folly for the Department to ignore aspects of the amendments because of limited financial restrictions. At the end of the day, we are trying to put together the best legislation. While the Vice Chairman must accept diktats from the Department of Finance on these amendments, it behoves the Minister to examine our proposals to improve the legislation, which is our intention. A negative response has emanated from the Department, which I do not accept. My colleague may be more knowledgeable on the legal interpretation of the ruling but it does not make sense.
Vice Chairman
My advice is that amendments Nos. 2 to 4, inclusive, amendment No. 16 and amendment No. 19 must be ruled out of order.
I broadly accept the ruling but Deputy Seán Ryan has made a pertinent point. We are hamstrung in effecting improvements that reflect what we hear on the ground and what has been conveyed to us by various interest groups. The legislation will provide for an advocacy service and if the issue of funding leads to restrictions, it does not bode well for the legislation, which is why we are aggrieved by this attitude. It is a long-standing rule which we must accept but we ask the Minister to examine the import and thrust of the amendments which are reasonable and incorporate them into the legislation, as they would improve it. That is what we have set out to do. We must accept the ruling, although Deputy Seán Ryan has tremendous distaste for this because of the financial implications.
Vice Chairman
Amendment No. 8 in the name of Deputy Boyle seeks to insert a new provision which would empower the Citizens Information Service to "assist with the review, updating and maintenance of the Register of Electors". The Bill contains no provision which is in any way related to electoral law or the maintenance of the electoral register. In addition, the Citizens Information Service does not have a responsibility with regard to the register. Therefore, the amendment must be ruled out of order, as it is not relevant to the provisions of the Bill or its subject matter.
Amendments Nos. 16 and 19 have been ruled out of order.
What is the status of Deputy Boyle's amendment?
It has been ruled out of order.
Is Deputy Boyle a member of the select committee?
He is a nominated substitute.
The amendments referred to are out of order. Deputy Penrose's amendment seeks to remove the criteria for qualifying for the advocacy service provided in the Bill. Section 5(2) provides that a person will qualify for a personal advocate if by reason of disability they cannot access social services and there are reasonable grounds for belief that there is a risk to their health, welfare or safety if they do not receive the social service in question. Deputy Penrose's amendment seeks to remove the second criterion. The effect of this amendment would be to increase the number of people who would be entitled to the advocacy services introduced in the Bill. There is potential for an increased charge on the Revenue arising from this provision. The amendment must, therefore, be ruled out of order on that basis.
Deputy Stanton's amendments are similar to Deputy Penrose's amendment although they do not go quite so far. They seek to remove the criterion for qualification for the advocacy services proposed in the Bill and to replace it with one which is less strict. Section 5(2) provides that a person will qualify for a personal advocate if by reason of a disability they cannot access social services and there are reasonable grounds for believing there is a risk to their health, welfare or safety if they do not receive the social service in question. Deputy Stanton's amendment seeks to remove the second criterion and substitute a requirement that the social service will prove beneficial.
The effects of these amendments could be to increase the number of people who would be entitled to advocacy services introduced in the Bill. There is potential for an increased charge on the Revenue arising from these provisions. The amendments must, therefore, be ruled out of order on that basis.
SECTION 1.
I note that the terms "citizens information board" and "citizens information service" are being used before the legislation is passed. I would prefer if the board had waited until the legislation was discussed before it changed the heading on its website and so forth. That would have shown more respect for the Oireachtas. It would have caused problems if we had found a different name to be acceptable. This is not a huge issue but I merely wish to mention it and to have it noted.
I am sure the board made every effort to hold on to the name "Comhairle". As recently as two days ago I heard a radio advertisement using the name Comhairle. The new name may have slipped into the vocabulary in places but I have not seen it used on a large scale.
If one goes on to the Oasis website one is directed to the citizens information website.
It was already planned to change the website name.
My point is that this was done before the legislation was discussed here. It is as though we are rubber-stamping a decision that has already been taken.
The Deputy's point is a fair one. However, no disrespect was intended.
That is understandable. However, if we come up with an alternative name that is acceptable it could cause more confusion. In future, bodies should wait until legislation is passed before making changes.
That is a fair point. The board did not deliberately change the name Comhairle to Citizens Information Board anywhere apart from the website. The board had intended to change the website name, which it is entitled to do without legislation. I know the members of the board would not wish to be disrespectful to the committee or to the House, nor would I allow it. Nevertheless, Deputy Stanton's point is worth making.
I move amendment No. 1:
In page 3, lines 30 to 32, to delete all words from and including "com-" in line 30 down to and including "Centre" in line 32 and substitute the following:
"commonly known as a Citizens Information Service (CIS) [being an independent non-statutory body Incorporated and Limited by the Guarantee of its Members] or a Citizens Information Centre (CIC) [being an Unincorporated body operating under the authority of a CIS]"
The amendment emphasises the situation regarding services being provided through the citizens information service and through a body operating under the authority of the citizens information service, that is, a citizens information centre. The definition in the Bill needs to be beefed up to emphasise what has gone before and also to emphasise the different legal status of the already existing bodies. The amendment will give life and status to both these bodies after the passage of the Bill.
I have taken advice on this matter and I am assured the amendment is not necessary. It could even constrain the organisation in trying to progress its professional service, which is based on committed voluntary service. My purpose in including the citizens Information Service and the centres in the definition of "voluntary body" is to provide statutory recognition of these front line services which form the primary channel through which information on social and civil rights and entitlements is provided to the public. I am advised that what is in section 2, which is the definition of "voluntary body", and the wording in the proposed legislation is more appropriate. I see what the Deputy is trying to do but I am advised that it is too precise and could even constrain the organisation.
The definition of a voluntary body is "a body corporate or an unincorporated body of persons other than a statutory body and includes a body commonly known as a Citizen Information Service or a Citizen Information Centre". That makes it quite clear that these two are included in the definition, which I think is the Deputy's intention. The format he suggests would require substantial research and legal advice of a higher order than I have had an opportunity to take. I am assured that the wording in the legislation meets the Deputy's requirement in that it specifically includes "a body commonly known as a Citizen Information Service or a Citizen Information Centre". I prefer not to accept the wording proposed by Deputy Boyle. I am assured that what he proposes has been achieved.
Precisely the opposite concerns exist among volunteers in the service. While the granting of statutory recognition has been sought and is welcome, putting it in such a form in the Bill will allow the voluntary ethos of the organisation to be eroded so that it will eventually become a full State service. The intention of my amendment is to recognise the current voluntary ethos and to have it continued into the future.
The Minister has indicated that the amendment might be open to different legal interpretations. Will the Minister seek further legal advice and provide it to the committee on Report Stage?
My advice is that the section fully meets the requirement of the Deputy. The organisation has more than 1,000 volunteers. At the heart of this legislation is a commitment to marrying together the best of professional management with voluntary effort and to maintaining that balance. The last thing I want to do is interfere with the enormous amount of voluntary work being done in community information centres. It is critical that we hold on to that. I am trying to give that work national leadership and a national structure so that it can continue what it is doing but in a more structured and organised way, working out its own future.
This is probably not the last word on citizens information legislation. We are embarking on a journey. We can always make amendments as we learn from experience. Regarding this amendment, I am strongly advised that section 2(1)(c) includes, in the definition of a voluntary body, a reference to “a body commonly known as a Citizen Information Service or a Citizen Information Centre”.
I will take another look at this matter before Report Stage but I do not want to make easy promises because I am unlikely to accept the Deputy's amendment. However, if he is asking me to take further legal advice I will do so.
I do not doubt the Minister's motivation or the intention of the Bill. The difficulty is in passing legislation that can be interpreted by future holders of his office when we cannot be sure the same benign intentions would exist. There is a fear among some in the existing service that the current ethos might be undermined by the wording in the Bill. That is why I ask the Minister to reconsider the wording or, at least, that further advice on it be sought.
I will look at the wording but my strong advice is that the Deputy's concern is well covered and that the definition does not undermine the extent of voluntary effort in the organisation.
Vice Chairman
Amendments Nos. 2 to 4, inclusive, are out of order as they would involve a charge on the Revenue.
Amendments Nos. 5 and 6 are related and may be discussed together.
I move amendment No. 5:
In page 4, line 22, to delete "family support" and substitute "family support and childcare".
Amendment No. 5 proposes a small change to the listing of areas defined as social services in section 2(c). Child care, as a clearly defined area, has become prominent on the political agenda in recent years. It needs to be distinguished from family support. The very idea of family is undergoing an examination and we are questioning what we mean by the idea of a family. We are looking at the nature of a relationship between two people, the existence of children within that family arrangement and the existence of an extended family arrangement with grandparents and other connected people. On those grounds my amendment proposes a small change but one that better outlines the nature of the social services to be dealt with. I hope the Minister will look positively on the amendment.
Section 4 states that one of the functions of the citizens information service is to support, promote and develop greater accessibility, co-ordination and public awareness of social services. My amendment proposes to include transport and physical accessibility among the list of social services. I accept that the definition of social services in the Bill is broad but it does not include a reference to transport and physical accessibility. These should be explicitly included in the Bill. They are included in the Department's sectoral plan in the Disability Act 2005 and are of equal importance with housing, employment and the other issues mentioned.
One of the main obstacles to people with physical disabilities accessing employment and other social and health services is the ready availability of accessible transport, whether private cars or public transport. This is particularly apparent in the lack of wheelchair accessible taxis, which causes particular difficulty for people in rural areas where there is very little public transport. Private transport can also be expensive for people with physical disabilities as the cost of many of the necessary alterations to vehicles can only be recouped from the State at the end of each year through the Revenue Commissioners. Many people with physical disabilities often experience exclusion from the built environment, which makes accessing services available in buildings impossible.
We are dealing with a Bill that will provide advice and support to people with disabilities. One of the most important social services we can provide for people with disabilities is transport and another is physical access. These should be mentioned explicitly as social services to be promoted, supported and developed. People with disabilities often do not know their entitlements. Surely the role of an advocacy and information service should be to provide information on these two vital services, transport and accessibility. I propose my amendment on those grounds.
I support the amendments, which serve to improve the Bill, particularly in terms of advocacy. There is no point in having an advocate who is constrained. Rather than nit-picking at the contents of a Bill, it is our job to ensure the role of the advocate is emphasised.
Following what Deputy Stanton said, in rural areas accessibility of transport is a key issue. It is important that the advocate is not constrained in ensuring that people, particularly those with disability who have difficulty in securing wheelchair accessible taxis or other modes of transport and in regard to other issues of that nature, are fully informed as to the services they might be in a position to secure. The amendments tabled by Deputies Boyle and Stanton strengthen the Bill. The Minister should give careful consideration to them. Deputy Boyle's amendment, which provides for the deletion of "family support" and the substitution of "family support and childcare" is worthy of consideration in this respect.
I thank the Deputies for the amendments. The definition of "social service" in section 2 reads:
‘social service' means any service provided by a statutory body or voluntary body that is available or accessible to the public generally or a section of the public pursuant to statute or otherwise and includes, but is not limited to, a service in relation to any of the following, namely, health, social welfare, education, family support, housing, taxation, citizenship, consumer matters, employment and training, equality, asylum and immigration ...
That is a very broad definition of social services. Not all social services are provided by a statutory or voluntary body. Some are provided by limited companies. That is the case in regard to transport.
I am satisfied the definition in the proposed legislation, which provides that a social service "includes, but is not limited to" services related to health, social welfare, education, family support, housing, taxation, citizenship, consumer matters, employment and training, equality, asylum and immigration, would in broad terms permit the inclusion of child care and transportation in their broadest sense. There were 730,000 queries to citizens information services throughout the country in 2005. The categories were fairly clear and have been reflected in the legislation. They were social welfare, 34%; employment rights, 11%; health services, 8%; and family matters, 7%. I am satisfied, therefore, that the definition in the legislation covers what Deputies want. There is a problem in regard to transportation in that it is not envisaged that the private sector should be included, or organisations run for private purposes. The definition in section 2 comprehends the giving of information about transportation and about child care. The phrase "family support" includes child care. It could be argued that inserting the phrase "and child care" might imply that other types of child support, such as child benefit, child dependant allowances, and child supports for different types of family structures, are not included. The phrase "family support" covers everything, whereas the phrase "family support and child care" picks out one area. The lead-in to that section is very strong. The list is indicative. The definition of a social service is not limited to that list. For that reason I would prefer to leave the section as it is.
I do not accept the Minister's argument about child care being confused with child benefit or child dependant allowances. I would like to have it recorded that I sought to make this change, so I will press the amendment.
I move amendment No. 7:
In page 4, between lines 24 and 25, to insert the following:
"(d) Section 2(2) of the Principal Act is amended by the insertion of the following new paragraphs:
"(c) Nothing in this legislation will detract from the primacy of the judiciable obligation placed on government departments, state agencies and publicly funded bodies to be proactive in making information publicly available on the schemes and services they provide and on their decision-making processes as prescribed in the Freedom of Information Acts 1997 and 2003.
(d) Government departments, state agencies and publicly funded bodies may co-operate and liaise with the Board, the better to be proactive in making information publicly available on the schemes and services they provide and on their decision-making processes.”.”.
The Minister may say these additional sections are not necessary because of the existence of the Freedom of Information Act. However, there is an ongoing debate about the willingness and legal capacity to provide open government and information on Government services. Given that there is an agency that is being restructured to continue to provide public information, it is important that these sections are included in the Bill to underline its ethos as a transparent body and a beacon to other State agencies. The principle of having free and open access to information, which is sorely lacking at the moment, should not only inform the workings of this agency but should be an example for all Government bodies. Those are the grounds on which I move this amendment and I hope the Minister will react positively to it.
Where do advocates stand regarding the Freedom of Information Acts and the Data Protection Acts? The question is relevant, since freedom of information has been mentioned. Would all advocates be covered by the Acts? How would they apply?
The word "proactive" is in Deputy Boyle's amendment. We have tried to be proactive on the advocacy side. This can be seen as we go through the legislation. Comhairle is required to be proactive in bringing the availability of advocacy services to people's attention, not to sit back and wait for it to happen. I support the concept of being proactive
In regard to amendment No. 7, this Bill does not propose to amend the Freedom of Information Acts of 1977 and 2003. The Bill proposes to strengthen the functions of the board to provide high-quality information to the public. Members will be aware that at the centre of this is the introduction of a personal advocacy service. The Bill sets out the proposed information functions. The Citizens Information Bill does not in any way undermine the Freedom of Information Acts 1997 to 2003 as they normally apply.
Amendment No. 7, subsection (d) states: “Government Departments, state agencies and publicly funded bodies may co-operate and liaise with the Board, the better to be proactive in making information.....”. As a statement of what is desirable, I cannot quibble with this. However, it is unnecessary to include this in primary legislation. If it were to be rewritten, it would have to read “shall co-operate”. One could not provide the option of “may”, though I accept that is not deliberate on the Deputy’s part.
Government Departments, State agencies and publicly-funded bodies are required to co-operate in making publicly available information on schemes and services operated by them. They are also required to make their decision-making processes publicly available in so far as the legislation requires. There is no need to insert a section which suggests Government Departments should co-operate with the board. I know the Deputy's motivation in this regard is, to use his own word "sound" but it is not necessary particularly when the word "may" would have to be substituted with "must". This could lead, as Deputy Penrose will know, to arguments with lawyers about what exactly is meant by "co-operate" and "liaise", namely, does it mean one takes instructions from them or that one just liaises with the board. I am advised by the Parliamentary Counsel that this provision is unnecessary.
I will correspond with Deputy Stanton on his question regarding freedom of information. The Deputy wants to know if the freedom of information legislation covers Comhairle. I expect it does but I will check for the Deputy.
There are different types of advocates envisaged in the Bill. I am interested to know what the position is regarding freedom of information requests on information or sensitive data held by advocates.
Subject to checking this, I can assure the Deputy that personal data, such as constituency representations, are not covered by FOI. The Deputy is correct that such information, particularly in the area of advocacy, would be very sensitive. The same applies in regard to data protection information. General data is available under the freedom of information legislation but data relating to an individual would not be available. Comhairle is covered by the Freedom of Information Act. I will come back to the Deputy before we finish this evening if any of those statements are not accurate.
Another important question that arises in this regard is whether personal advocates have to register with the Data Protection Commissioner.
Not individually, though the organisation would. The agency would be required to register with the Data Protection Commissioner but not the individual employee.
I understand that some advocates would be acting in a voluntary capacity and as such would not be fully covered by the director of personal advocacy. I would like clarification on how the different types of advocates interact under this legislation in terms of what rules or laws do or do not apply to them.
Advocates will be full-time staff of the agency reporting to the director of advocacy services who in turn will report to the chief executive. I am not aware if the agency intends to recruit any part-time advocates. Even if it did, they would be required to be employees of the board. I do not believe it envisages drawing up any formal contracts and so on. The advocates will report in the ordinary way to the director of advocacy.
Are there advocates currently working within Comhairle, even on a voluntary basis, and, if so, how does the legislation apply to them?
Comhairle does not currently employ an advocate in an official capacity though it does employ people who do this type of work. It will move to a more formal system when this structure is in place. The answer to the Deputy's question is, the organisation does not currently employ anybody with the formal title of advocate. Work in this regard is being undertaken by members of staff.
To add to what the Minister said and following on from Deputy Stanton's last point, during my time as vocational officer with the National Rehabilitation Board, an element of the NRB subsequently subsumed into FÁS, my role was in the main representational and involved looking after people's employment rights and meeting their needs in terms of making them more employable. However, that is only a certain aspect of their lives. It is one of the arguments I put forward on Second Stage regarding the manner in which the NRB was disestablished.
On the amendment, the Minister spotted my deliberate mistake. Opposition Deputies cannot use the word "shall" because it imposes a cost on the State and as such the amendment would have been ruled out of order. One hopes these matters will be corrected on Committee Stage.
The Freedom of Information Act allows people to access information about themselves and protects against much of that information being accessed by other people. I have a genuine concern this may be used as an excuse in terms of how this service is run. For instance, we might not be able to obtain information in regard to the numbers of individuals accessing and asking questions about particular situations, namely, whether the needs of people with personal disability are being met within certain timespans because an argument may be made by a Government Department or State agency that the accumulation of this information, even though it will be released in generic form, would be based on requests for personal information which would be restricted under the Freedom of Information Act. One of my reasons for tabling the amendment is to ensure the Freedom of Information Act is not used as an excuse in the compilation of necessary statistics on the generic use of the service. Perhaps the Minister can offer us some assurance in this regard.
The point about being proactive is well taken. It is at the heart of what we are trying to do. Members will note that Comhairle is required, in section after section, to bring this service to people's attention. I have dealt already with the second part of the Deputy's question.
I would like to return to Deputy Stanton's question on advocates. Comhairle fund approximately 20 or 30 organisations around the country which employ advocates. There are advocates in the field but they are not directly employed by Comhairle.
The issue is whether this legislation will have any bearing on the people doing that work.
No, it will not. Quite the opposite will be the case, it will enhance what they are trying to do.
I do not wish to nit-pick as I know it is late. Nevertheless, the Minister has said there are people who are providing advocacy services and are employed by agencies funded by Comhairle. The Bill defines a personal advocate as having the meaning assigned to it in section 7A of the principal Act. Does this mean that all those other advocates mentioned by the Minister will not be answerable under this legislation? By not being included are they totally excluded from the Bill?
The other advocates that are employed by say Cheshire Ireland would have their own advocates employed by that board. They will simple get funds from Comhairle. They would not directly pay the salary of the advocate; it would go to the employer organisation. That will not change. When Comhairle hires its own advocates the status of advocates employed by other organisations will not change.
I also take this opportunity, Chairman, to confirm that the information I gave you earlier about the Freedom of Information legislation is accurate.
Vice Chairman
Amendments Nos. 9 and 10 are related and may be discussed together.
I move amendment No. 9:
In page 4, subsection (1), line 27, to delete "Citizens Information Board" and substitute the following:
"Comhairle — The Citizens Information and Personal Advocacy Services Board".
We are coming to the meat of our concerns regarding the nature of the Bill and what will result from it. The Bill arose from concerns felt at some level regarding the name of the organisation, and the name "Citizens Information Board" is proposed as the best vehicle for progressing the goals of the organisation. During the debate on Second Stage I argued that this causes unnecessary confusion with existing services and does not fully explain the nature of the service proposed in the legislation, which includes a strong commitment to developing and practising a personal advocacy service. The existing name is adequate; it has brand identification and is held in considerable affection. On those grounds I propose this amendment. "Comhairle" should be the used title and "Citizens Information and Advocacy Board" should be a subtitle and full explanation of the services to be provided by the newly revamped agencies.
The old website is called Oasis and gives on-line access to State information and services. Only five letters are required to access that website. I accept that many people are unaware of the website and that it is under used; even colleagues in the Oireachtas are not aware of it. Nevertheless, it is a wonderful resource and I compliment the people responsible for it.
I am concerned that the URL, www.citizensinformation.ie, contains 24 letters. It could be challenging to type that address for people who have difficulties with literacy, as it is long and easy to make a mistake. Accordingly, I suggest it be shortened to www.citinfo.ie, which would get the message across. In the United Kingdom the corresponding address is www.direct.gov.uk, which is short and to the point. When I typed www.citizensinformation.ie, I had to be extra careful not to make a mistake. I suggest the Minister, his officials and the board bear in mind the potential to deter people from going on-line to access the site. I know a person can type it once and save it but “citizensinformation” is a bit of a mouthful. It is even difficult to say, whereas “citinfo” and “direct.gov” are shorter. The Minister might not accept any change now and I note the website has been activated. However, I ask those involved to keep an eye on progress and, if the website is not being used or proving difficult to access owing to the length of the title, to revisit it and consider something shorter and snappier which would encapsulate the brand image the Minister wants to promote, an objective with which I agree, while making access to new technologies easier.
The objective in changing the name was to create a brand that could be built on during the years. It is incumbent on an organisation with €24 million in State funds to realise that it is in the business of providing information for those who need it. I felt Comhairle had served its purpose but, with society moving as fast as it is and the resulting competition for people's attention, we had to do what it said on the tin. Given that there were 235 organisations, all known as citizens information centres, it did not make sense for a named national organisation which funded, guided, trained, advised and led them not to form part of the brand. As politicians, we all know it is difficult to get people's attention. Therefore, if Comhairle, Oasis and the CICs are in the business of providing information, they must streamline their own practices and make them neater and more focused.
We discussed the name at length with the board of Comhairle and its executives and considered various proposals. At one stage we considered persuading the 235 CICs to change their name to "Comhairle" but that did not make sense because they had too many loyal followers. I was also conscious of the situation regarding immigrants, which we discussed with a number of immigrant groups which were satisfied that the word "citizen" was accepted in its broadest sense, not just the narrow legal sense but one which reflected a societal aspiration such as the wish to become a citizen of Ireland, Europe or the world. Accordingly, we opted for the title "citizens information board". We considered including the word "advocacy" in the title, an issue we discussed with the disability consultation group. It was agreed we would include it in the Long Title of the Bill. We further agreed to attach a strapline to the title to be used at all times. Therefore, the title will be "citizens information board", while the strapline underneath will include the words "information, advice, advocacy". In that way we accept the sensible idea of retaining the word "advocacy". The name ensures neatness about the brand which will prompt people to contact the citizens information board or any one of 235 centres. It will make the job of the new board easier.
I appreciate the argument in favour of leaving well alone. I considered all the options long and hard and consulted widely. I settled on using the word "advocacy" in the strapline and, much as I love the Irish language, omitting "Comhairle" to try to build a strong image of the citizens information service, nationally and locally. I reminded Comhairle at its board meeting that its role was not to stay in the background and just fund bodies which provided information. I have tried to put it at the forefront to make it visible in providing information. As a body with €24 million in State funds, it must be seen to provide information. It is not an elite organisation but if it remained in the background, it could be seen that way.
I appreciate Deputy Stanton's intent in tabling amendment No. 10. I believe he tabled it to ensure discussion and would not seriously contemplate including it in legislation, as one does not provide in legislation for the provision of a website.
Correct.
The board will be free to consider his suggestion, as I am sure it will. We will certainly bring it to its attention. The situation is evolving but one brand in the provision of information on all State services, including social services, is desirable, even if it does contain 19 letters. I favour using the longer version until we see how it is received but it will be the board's decision, not mine. I do not know if the Deputy has tried to enter the term "citinfo" on the Internet but the list might include sites in Saigon or Sydney because the term contains part of the word "city". However, I will pass on his suggestion and if the board wants to shorten the name, it may. I would prefer not to alter section 3 by accepting amendments Nos. 9 and 10.
The Government website address is www.irlgov.ie. Therefore, there are precedents and good reasons for having a shorter name to make information more accessible, which is the point of the exercise. I accept it is not something one would include in primary legislation but making information more accessible is a serious matter. It is unusual to see such a long URL and it could put people off. Now is the time to discuss the issue before the body has bedded down and becomes set in stone. I take the Minister’s point that a brand image has to be the same across the board but perhaps that can be taken too far also. There is a precedent in the case of the Government website, www.irlgov.ie, the address of which is short and easy to type in, especially for those who might have difficulties with literacy.
My favourite website is www.peoplesrepublicofcork.com, which has 27 letters, but Cork people are very patient and realise the world will come to them eventually.
Do not try to shorten the title.
I regret the fact that the Minister has declined to accept my amendment. While I can understand his reasoning that it is the basis for his rationale for the entire Bill, I do not happen to agree with him. I agree there is a need for across the board branding and ready recognition as a result of consistency in branding. However, the Minister's comments on the need for information in the Title also apply to the inclusion of the word "advocacy". Including it in the Long Title is hardly the best way of selling the service and making people aware the service is available, given that it is one of the raisons d’être of the organisation.
If a different title was applied to the national body, it would be out of sync with the 235 local bodies which would not be called citizen information and advocacy centres. I am trying to ensure the use of one title across the board.
I understand where the Minister is coming from but a large proportion of the legislation concerns the need to provide advocacy services. It is an important element of the organisation's work which should be reflected in its title. The term "citizens information" does not reflect it. I am obliged to press the amendment because it is the greatest issue of contention in the legislation which most of us supported on Second Stage.
The Deputy is entitled to do so. However, we consulted disability interest groups and the disability legislation consultation group at length and it was a significant issue. We included the word "advocacy" in the Long Title and the strapline immediately beneath the Title. The strapline should appear beneath the board's title every time. It will be concise and neat, otherwise it would be too long. It is not intended to reduce the requirement on the board to provide advocacy services. The board may be given other duties but its title cannot be amended every time. Advocacy is at the heart of its work but by including the word in both the strapline and the Long Title, funding and supporting the advocacy service and appointing a director of advocacy services I hope to ensure the best of all worlds.
The Minister is probably as adept as I am at the German language. Whenever terms are amended in German, the words become longer. Perhaps our legislation should evolve along similar lines. This issue is causing most concern, particularly for those engaged in the service who feel slightly put out by the procedures accompanying the legislation and are confused about the effect of the name changes. I will press my amendment without calling a division and reserve the right to table it again on Report Stage.
I move amendment No. 11:
In page 4, line 39, to delete "disability," and substitute "disability and those resident in institutions,".
A report entitled, Developing an Advocacy Service for People with Disabilities, commissioned by Comhairle in 2004, stated:
Service providers in the community and voluntary sectors are increasingly aware of the need for these services. Unlike many other countries, Ireland still has a significant population of people with disabilities resident in institutions, in particular people with mental or intellectual disabilities. As these people are particularly vulnerable, it is essential that advocacy services are designed to reach out to this group.
Various reports have condemned practices in many institutions but the Bill does not focus sufficiently on this issue. That is why I would like to include in the legislation a specific reference to people with disabilities resident in institutions.
Many people with disabilities, despite being resident in institutions, will continue to find it difficult to access many social services. They should be made aware through explicit reference in the legislation that they are entitled to apply for the assistance of a personal advocate in accessing services. I was pleased the Minister stated in his closing contribution on Second Stage that the 14,800 people with intellectual disabilities and mental health problems who were in hospitals and full-time residential and community facilities would be prioritised by the new service, as they were most often excluded from services, especially those without formal family networks to advocate on their behalf. If they do not have close family networks, it is up to the State to provide information and an advocacy service.
I support the amendment because the Goodbody report indicated advocacy services must support people with disabilities in gaining access to quality social services and enhanced, fair and dignified treatment by service providers. People in an institutional environment are entitled to access the advocacy service and should not be restricted or inhibited. It should also be ensured that their entitlements and facility to have someone advocate their case will be clearly set out. I cannot see how the amendment would cause great difficulty, particularly in the context of recent contacts regarding people in institutions. I strongly urge the Minister to give serious consideration to the amendment which would be worthwhile.
Section 4 amends section 7 of the principal Act which states "to support the provision of or, where the Board considers it appropriate, to provide directly, advocacy services to individuals, in particular those with a disability". The Deputy wishes to add the words "and those resident in institutions". The draft wording covers institutions. The Deputy might say it would be no harm to state this clearly but if institutions are included, we will have to define what is an institution, what type of institutions are covered and whether a distinction should be made between private and public institutions. It is better to state "those with a disability" because it is all-embracing and includes everybody with a disability, wherever they are resident. There is consensus that some are more vulnerable than others such as those with learning difficulties, mental health issues, a long-term illness and those in various institutional settings. They will all be prioritised when the advocacy service is up and running. The draft wording is more all-embracing than the words "those residents in institutions". This term could also raise the question of where else they might be resident such as at home, meaning "home" would have to be defined. The draft wording is neater and black and white. It does not attempt to define where they might be resident. It is required under provisions in the legislation that the new body will proactively engage with people with disabilities. I do not have a difficulty with the concept but the draft wording fully covers institutions.
I accept the Minister's comments. I am glad he has stated people face difficulties, especially those with an intellectual disability in long stay institutions. It is important that we reach out to those who are most vulnerable, for example, those who may be unable to ask for the service and have no family or person to act on their behalf. An advocacy service is one way of dealing with such difficulties. Would the Minister consider this idea before Report Stage? I am not sure how many people in institutions need such a service; the Minister may have mentioned a figure of 14,000 but their needs must be borne in mind. On the basis of what the Minister said, I will withdraw the amendment.
The financial resources available to the board are a limiting factor. This is a factor in all legislation. How will the paragraph (bb) (ii) operate? It states “whether qualifying persons can obtain advocacy services otherwise than under this Act”. Different organisations provide advocacy services but does this mean people would be precluded from getting support under the provisions of the legislation?
It is a provision to avoid duplication. If somebody already has access to a good advocacy service in a local organisation, he or she will not apply to Comhairle for an advocate.
This comes back to my earlier question: how does one know what is a good advocacy service? The Bill endeavours to provide a definition and the parameters of a good advocacy service. My understanding is that it will not apply to other advocacy services. Even though such services are funded indirectly by the State, the advocates will not be answerable to the director or subject to the limits and protocols of the Bill. How is a person to judge whether it is a good advocacy service?
A person will not be ruled out from going directly to Comhairle, even if he or she has a local advocate. One simply goes to Comhairle, the citizens information board, to state one wants to apply to avail of the services of the advocacy service. I have tabled an amendment, amendment No. 33, which lays the responsibility on Comhairle to be proactive and bring the service to the attention of those who might need it. There is nothing in section 4 that stops the person Deputy Stanton has in mind from going directly to the national body and seeking an advocate. Comhairle may take the view that the person concerned has access to an adequate local service but it would only take that view if it meant it and the guidelines were being adhered to. I should have stated earlier that the local advocates, even though they are employed by organisations independently, are trained, by and large, by Comhairle and operate by its guidelines. Comhairle would know immediately whether it had trained the advocate in the local service and if it was felt the person concerned did not have access to a proper advocate locally, it would be within its rights to provide the service.
There is a difference between the two advocates. Under the provisions of the Bill, it will be an offence if an advocate is obstructed in carrying out his or her function but I guess — perhaps I am incorrect — this does not apply to the other advocates the Minister has mentioned. The advocacy service as provided for in the Bill has statutory power and so on. If Comhairle is training and funding advocates yet, the director of advocacy services is not responsible for the other advocates, a two tier system will be built straightaway. It would be better for everyone to subscribe to come under the one umbrella, the National Advocacy Service. Then everyone would have the same powers, responsibilities and be subject to the same controls and guarantees. I am not sure if that is possible but the State is funding the entire service.
It is difficult to see how that could be done within the confines of the Bill.
I tightened the wording to ensure Comhairle must be satisfied that the body it funds operates properly. If that body has a local advocate, I am sure I could find a way to ensure Comhairle does not fund the body, unless it is satisfied as to the quality of the advocate. It might be worth looking at that issue again.
If Comhairle had accreditation status, it would ensure people had the necessary skills and competency to provide advocacy services. When one is advocating for people with disabilities, one needs a higher level of competence. It is more detailed than advocacy in another area. It is important that Comhairle have an accreditation role. I know that Deputy Stanton is seeking to ensure we will not establish a two tier system of advocacy but it would be difficult to achieve what he is looking for within the confines of the Bill.
In 2005 Comhairle published a set of guidelines for delivery of advocacy services through local community and voluntary organisations which laid down that the advocate should empower the person with a disability, respect the person's wishes, act in his or her best interests, act independently and maintain confidentiality. It also makes proposals on the levels of qualification expected of a personal advocate. I know these are only guidelines but Comhairle will not fund a body if it does not keep to them. I can look at ways of tightening the procedures. The institute of technology in Sligo provides a FETAC course to train the trainers in Comhairle who will train local advocates.
I see what worries Deputy Stanton in a two tier system, in which people may be blocked off as a result of being stuck with a poor advocate and unable to access a highly trained national advocate.
And the person with the authority.
Local advocates should be of a very high standard, if they keep to the guidelines. Comhairle may simply refuse to fund bodies which do not keep to them. The guidelines can be strengthened and I will ask Comhairle to do this.
The fallback position is that we have a provision in an amendment to allow somebody to act on behalf of a person with a disability. Therefore, a friend, family member or neighbour can go directly to Comhairle to seek an advocate, in the process bypassing the local voluntary community organisation, if that is what the person concerned wants. He or she will not be refused an advocate by the national body by virtue of the fact that a local advocacy service is available. Account will be taken of this and there might be a local issue involved. The best way to cover this is to have them strengthen the guidelines and ensure organisations that do not adhere to them do not receive funding.
It states that when the board arranges for the provision of a personal advocacy service for qualifying persons it should consider certain factors including whether qualifying persons can obtain advocacy services otherwise than under this Act. This means if a local organisation provides such services the individual could be directed to obtain the service from that source.
The service obtained in such circumstances will, by definition, be weaker than services provided for in this Bill because it would not be an offence to obstruct an advocate from a local organisation in gathering information. It will be an offence to obstruct the work of an advocate set up under this Bill and this indicates a clear difference between the two types of advocate. The Minister is clearly suggesting in the Bill that if a qualifying person can obtain an advocacy service other than under the Bill the board shall take this into account. I take this to mean the board will not provide a personal advocacy service under this Bill if another advocacy service is available and this could lead to conflict later on. People may approach the likes of Deputy Finneran and me having been told to get an advocate from a local organisation providing a service funded by Comhairle who is not as powerful or well supported as an advocate provided under the national service.
Some existing personal advocates are concerned at their current position relating to, for example, the resolution of disputes between themselves and the Health Service Executive, HSE. The director of advocacy services will have no role regarding such advocates and they will be left adrift. Who will cover such advocates in legal issues and what will happen in cases where parents have separated and disputes arise between them over advocacy services for a child? These matters do not come under the umbrella of the Bill and the guidelines mentioned by the Minister are not legally binding. There is now an opportunity for the Minister to consider this matter in a broader sense and include all advocates under the aegis of the director of advocacy services because, if all advocates received the relevant powers, one service could exist instead of a two tier service.
I acknowledge the issue raised by the Deputy. However, section 4 states that the board shall take such matters into account. Taking something into account is a well known legislative phrase and does not place any greater onus on the board than the words imply. I have often looked up sections of legislation as a Minister, noticed I am required to take something into account and spent five seconds doing so before moving on. One cannot read too much into the phrasing in the area raised by the Deputy.
Another issue is the extent to which we might undermine strong, local, voluntary organisations, funded by Comhairle with advocates who respect the guidelines, by suggesting individuals go to Dublin to use the national service. They should first see if the service can be obtained closer to home. It is necessary to find a balance because we do not wish to undermine professionally trained community advocates who work for highly respected voluntary organisations with their own terms of reference and guidelines. We must learn from this as we progress and the idea of subsuming all advocates into one body, overnight, would be too quick a decision and would indicate that we doubt local organisations' ability to do the job, though I know the Deputy does not intend this. There are two sides to the story.
There are three sides to the story. Questions have been raised over who employs an advocate in a local body and the independence of such advocates. The advocate is there for the qualifying person who needs support and advice and should be more independent of local bodies. I am not saying this to undermine advocates but rather to strengthen them.
This is not an issue that will be resolved this evening and I do not wish to protract it further as it is getting late but it was put to me by a group of advocates working for the bodies mentioned by the Minister and that is why I have raised it. Those advocates are very concerned and made eight points to me, most of which I have raised here.
Some of the local bodies in question include the Irish Wheelchair Association in Cork, the Westmeath Mental Health Advocacy Network, the Galway Advocacy Service, the Donegal Physical and Sensory Disability Consortium, the Acquired Brain Injury Advocacy Association and the Centre for Independent Living and Partners. The list goes on and many of the bodies have advocates and oversight mechanisms so it is wisest to see how we progress with the service. I take the Deputy's point that a stage must be reached when advocates in the area are of a guaranteed standard to ensure the basic professional service is provided in all cases and I will consider what he has said to see if my Department can be more helpful.
The Minister is correct to identify that there is a distinction involved in this case. Many voluntary bodies, including mental health associations and so on, have people acting as advocates and, while they mean well and provide a great service, this is significantly different to what is proposed in the legislation. There are approximately 13 people appointed on a pilot basis at the moment and I sat on the interview board for such a position in my county but, unfortunately, they have little or no support. I hope those appointed have the capability, along with the authority, to see legislation adhered to. We should not compare what people do in the voluntary sector with the role of those taking the new positions. The pilot appointments were a worthwhile effort but they have not been successful and lack support and authority — they are failing to force Departments to meet the needs of people with disabilities. I am keen that the new positions created will include the necessary authority. I work in organisations that employ advocates on behalf of individuals but that is a different situation.
I appreciate the Deputies' comments and I share their sentiments. One of the amendments I have tabled lays down that "a personal advocate shall have such qualifications, expertise relevant to personal advocacy as the board considers appropriate". This means the legislation will demand that such advocates be properly qualified and experienced and it is also the tenor of Deputy Stanton's earlier comments.
Vice Chairman
Amendments Nos. 12 and 13 are related, amendments Nos. 14, 21, 22, 24, 27, 29 and 32 are consequent on amendment No. 12, and amendment No. 25 is a technical alternative to amendment No. 24. Therefore, amendments Nos. 12 to 14, inclusive, and amendments Nos. 21, 22, 24, 25, 27, 29 and 32 may be discussed together by agreement.
I move amendment No. 12:
In page 6, between lines 10 and 11, to insert the following:
"(2) A personal advocate shall have such qualifications, expertise and experience relevant to personal advocacy as the Board considers appropriate.".
Amendment No. 12 to section 5 inserts a new provision, section 7A, into the Act. The purpose of the amendment is to enable the citizens information board to set out the qualifications, experience and competencies required to be a personal advocate in the personal advocacy service. A similar provision is contained in section 26 of the Education for Persons with Special Educational Needs Act 2004 regarding special educational needs organisers.
The amendment furthers the objective Deputies spoke about on Second Stage — I listened carefully to their contributions — that the new service should have highly-trained people with specialised skills to carry out the responsibilities of a personal advocate, which is a professional, skilled job requiring the advocate to speak up for and work with people with disabilities and help them access services. The amendment to section 5 is intended to empower the board to achieve that objective.
Guidelines published by the board suggest that, in general, personal advocates will be expected to have a third level standard of education and an experience of dealing with clients in a relevant area. Good judgment is also a key quality. The overall intention is to ensure a professional service of the highest quality. I trust my amendment to No. 12 also addresses Deputy Stanton's objective in his amendment No. 13 to the same section. The remaining amendments Nos. 14, 21, 22, 24, 27, 29 and 32 are consequential if amendment No. 12 is accepted.
We are all agreed that professionalism and independence are important in carrying out this type of work. It is a key requirement for advocates who would be employed by the board and those, to return to our earlier conversation, employed in the community and voluntary sector. These requirements are contained in the guidelines, which I dealt with earlier. The objective is to make certain that we establish an independent, high-quality and professional service and to recruit and use only the best professionals with sound judgment who will exercise confidentiality.
I have no problem with the Minister's amendment, the idea behind which is similar to the one discussed on Second Stage. Personal and other advocacy services are intended to give people with disabilities a voice to highlight their concerns and assistance in assessing the services they require. A personal advocate is someone who will give assistance and argue a point for people with disabilities who can be particularly vulnerable. For that reason, personal advocates must be trained and properly qualified to carry out their work.
It is obvious this service is needed. I understand that the only formal qualification currently is accredited through the Sligo Institute of Technology, although I stand to be corrected on that. The Bill, once enacted, will give wide-ranging powers to personal advocates. We must ensure that the advocates have the expertise to liaise with service providers, secure services required and be able to pursue any right to appeal on behalf of the persons they are assisting. They must also be diplomatic. They require many skills. The Minister referred to qualifications, expertise and experience, which are important. It is not only a question of qualifications, an advocate must also have relevant experience and expertise.
Reference was made earlier to the guidelines Comhairle published for the delivery of the service. I am happy with that. I also note it is the board that will consider the relevant qualifications, experience and expertise. I expect when the board is advertising for positions it will lay down the required qualifications, expertise and experience for such positions. I am happy with the Minister's amendment and will withdraw my amendment No. 13.
Amendment No. 25 is in my name. I am not sure why it was grouped with these amendments. It refers to the service being independent of service providers. It is important that the advocates would be independent of service providers. That brings me to the point I made earlier of whether if an advocate is employed by a service provider, a conflict of interest arises if he or she is advocating for the service provider, however well-intentioned the service provider may be. I accept that is like hitting somebody with a child in his or her arms. However well-intentioned the service provider might be, if the advocate is employed by the service provider, is there a danger of a conflict of interest arising? That is the reason I tabled that amendment.
The experience to date is that this does not arise. In the centres for independent living and other facilities the advocates are strong and they advocate clearly, irrespective of who they are employed by. Deputy Stanton's amendment, which the Minister appears to have embraced, is important because there are many types of advocacy both for individuals and organisations, including self-advocacy, peer advocacy, citizen advocacy, specialist advocacy and so on. We cannot, therefore, have a "one-size-fits-all" type system.
The board must have the discretion to ensure that whomever it employs has the necessary qualifications and expertise for the type of advocacy required in that organisation. We could not have a "one-size-fits-all" prescription. It will depend on the qualification, expertise and experience that are required to perform the particular functions requested of them at the time. I agree with Deputy Stanton that this should be spelt out clearly to ensure that people who apply for the positions are aware of the expertise and competency required. If the Minister's amendment is accepted, which I believe it will be now that Deputy Stanton has withdrawn his, the other amendments are consequential and follow from the import of the Minister's amendment. However, they derive from issues raised on Second Stage and are worthwhile because they improve the Bill.
On Deputy Stanton's amendment No. 25, advocates will be the staff of the board and, therefore, they will be required to be independent of service providers. It is almost certain that will be in their contracts. It is certainly clearly implied that if one is on the staff of any organisation, one must be independent of service providers.
Is there any way of ensuring that the advocates who are not covered by this Bill but who are funded by Comhairle would also be required to have the same qualifications, expertise and experience relevant to the position? That would ensure we would at least have a level playing field.
The short answer is that is provided for in the guidelines. The control they have over the guidelines is the funding of the organisation. Professionalism and independence in carrying out the work on behalf of people with disabilities are key requirements. They will have to be employed not only by the board but by advocates employed in the community and voluntary sector because the guidelines published by the board set out the way the personal advocates should do their duties and how they should be recruited. I do not think we can insert in the legislation anything that would bind the organisations to which I referred any more than we should do at this stage. They have guidelines and if they want funds, they must keep to them. I am sure their advocates are of the highest professional standard. That is probably as far as we should go.
I may have jumped the gun when I referred to section 5. The Minister has clarified that advocates will be employees of the board, which means they will be independent of the service providers. I appreciate this. The difficulty I have found with pilot advocates is that they neither have the required backup nor the authority. In my experience, when I made written representations on behalf of a family seeking a home care package, the advocate did not have the wherewithal or backup to deal with the matter. Advocates require two things in order to operate: authority and backup. Some 13 advocates are currently employed as part of a pilot project but they do not have backup such as a personal assistant to deal with correspondence and respond to representations made on behalf of families. Invariably, I end up writing to the service provider or the Minister because that is the only way I can get a response. Will advocates have backup in the form of secretarial assistance?
Yes, they will receive support. They will be working for a substantial national organisation with a budget of nearly €25 million. It has a strong board, good leadership and much strength. Therefore, it is well bedded down. We will have to continue to resource it fully to ensure advocates will have the support needed to do their job. They will be fully supported in doing the job they are required to carry out under the legislation. We cannot just pass a Bill and then not support them in doing that job.
Much is being made of having advocates with expertise. While expertise may be good, it is also necessary to have somebody with common sense in the job. He or she could see that an adequate service was being provided for somebody who needed a care package. Such an advocate could determine if people were not receiving their legislative entitlements and hammer on a desk or door to get things done.
As we all know, public representatives have been advocates all their lives. That is what we do for a living most of the time. Much of it is not based just on our expertise but also on common sense which sometimes is not too common.
I move amendment No. 14:
In page 6, to delete line 11 and substitute the following:
"(3) A person is a qualifying person for the pur-".
I move amendment No. 15:
In page 6, line 18, after "services" to insert "that he or she may require,".
The amendment may or not be necessary but by seeking to insert the words "that he or she may require,", it would make the provision clearer. I would like to hear the Minister's reaction.
I can see the temptation to be neat but, obviously, I am always reluctant to accept something like this without receiving good legal advice. As regards the wording "that he or she may require", a person may wish to have it but not require it. One could play with language as to what is a requirement but I am not sure that it is necessary to do so. The text included in the section reads "... is by reason of disability unable to obtain or has difficulty in obtaining a particular social service or services, without the assistance... ". Obviously, one would not seek a service that one did not require. I assume a person would only seek a service if he or she required it. I know the Deputy is trying to make doubly sure but, unless it is patently obvious, I would be nervous about accepting additional wording.
I tried to delete subsection (2) because it implies the service will only be provided if there is a risk of harm to a person's health or safety if he or she is not provided with it. In a way, that implies that if a service is not provided, harm can occur. It could also be argued that the provision of services could improve a person's circumstances. In that respect, subsection (2) is very negative. I would prefer it to be reworded to state a service would enhance a person's life in some way. However, it states a service will only be provided if someone would be harmed without it. It refers to "... a risk of harm to his or her health, welfare or safety if he or she is not provided with the social service or service which he or she is likely to obtain". Clearly, it is very negative because before a service can be provided, one has to prove somebody will be harmed if he or she does not receive it.
I agree with Deputy Stanton on that point. My amendment sought to delete lines 21 to 27, inclusive. I do not know why it was ruled out of order. I tabled it because of the unduly restrictive nature of the section. Deputy Stanton is right — the section states Comhlamh may only provide a personal advocacy service for a person with a disability if there is a risk of harm to his or her health, welfare or safety. That is restrictive. By using some contorted argument, someone has concluded that my amendment would impose a charge on the Exchequer. At this stage, however, it is not a question of imposing a charge on the Exchequer but of trying to get the Bill right. It would be farcical to restrict it unduly. That is why I tabled the amendment but it was ruled out of order.
I acknowledge the Deputies' comments. The word "welfare" is also included in the section which states "... if there are reasonable grounds for believing that there is a risk of harm to his or her health, welfare or safety". The word "welfare" should allow a broad interpretation of the section. In other words, in seeking an advocate, one will be able to make the case that if he or she does not receive help, it will be contrary to their welfare. That is not a hard argument to make. If one needs a service and does not get it, clearly that is not good for one's welfare. It can be interpreted much more broadly, and it probably will be. The reason it was included was to try to prioritise and deal with people who urgently needed the support and who, if they did not get the particular service, would slip back. It was to try to prioritise and get some kind of order on the list of people who might need the different services. That is the only reason it was included. I do not want to get into this debate, because this Bill is about information and advocacy, but it goes back to the major debate we had in the Dáil on rights and on the Disability Act. It is all part of that debate. This Bill is an element of that programme although the main programme was in the Disability Act. I do not really want to reopen up that debate unless Deputies so wish.
I am satisfied the word "welfare" in that section is enough to ensure that anyone who needs a service gets it. It also helps us to prioritise. If someone says he or she will suffer harm and his or her health will be damaged if he or she does not get the service, he or she will be dealt with first. That is one explanation of the section but I see how people could interpret it differently. That is what is in the section and I am stuck with it for mainly legal reasons, although also for financial and other ones.
The Minister referred to a person falling back if he or she did not get the service. A person with a disability could be living quite well in a house but the provision of a service would improve his or her quality of life enormously. There would not be a risk of harm to his or her health or safety if he or she did not get the service and he or she could carry on as before but the provision of a service might improve his or her life enormously. However, this section explicitly forbids the advocate from acting on behalf of that person in order to improve his or her quality of life. The advocate could only get involved if there was a risk of harm — in other words, if something negative would occur if the person did not get the service. It does not concern itself with the positives which might occur if the service was provided. That is why I sought to include the words "he or she may require". It is clearly laid out in black and white that there must be risk of harm. It is not only a case of a level playing field in that harm must occur.
The word "reasonable" is included. It refers to reasonable grounds for believing a person would fall back. Showing reasonable grounds should not be that difficult if one needs a service. The Deputy is making a distinction between falling back and an improvement.
There is a big difference.
I see that point. However, the thinking behind this is to try to prioritise the people who most urgently need support. There are 14,800 people with mental or intellectual disabilities in hospitals full time and in residential and community facilities at any point in time. There are 26,600 people registered on the national intellectual disability database, of which 9,200 are children. It is important to recognise that many people with disabilities would have the support of carers, parents, brothers and sisters who would act in their best interest all the time and who would assist and help to get access. The voluntary sector obviously does its thing.
We are trying to ensure the people we help first are those who would fall back if we did not help them. It does not stop somebody getting an advocate once he or she can show he or she needs the service. If one can show one needs the service, one will be able to show that if one does not get it one will fall back. It is to prioritise and to try to help people whose welfare will be damaged, if they do not get the service. That is a good place to start.
I will not tease it out further because we will not agree on it. It is a good place to start but we must go further and try to improve people's lives. It is not good enough to say that if we do not provide the service, a person will suffer harm. We must be able to say that by providing the service, we will improve a person's life rather than stop him or her falling back. That is the difference between what the Minister and I are saying.
We should proactively try to improve the lives of people with disabilities in every way we can, including by providing advice, information and service, rather than saying if we do not provide a service, they will fall back. There are people throughout this country who are not at risk of harm but who are coping and getting on with their lives. Perhaps a service would improve their lives enormously. However, this section specifically precludes that. There must be reasonable grounds that the person is at risk of harm before the service can be provided. If somebody wants an advocacy service, he or she will have to prove there are reasonable grounds to believe he or she is at risk of harm if he or she does not get it. The onus is on the person to prove that. It is very negative.
The onus is on the person to show he or she needs the service to ensure his or her welfare is not damaged. I take the Deputy's point but there is a whole sector of people who will have no difficulty showing a need and they will be able to do so very quickly. The word "reasonable" is included. All a person must do is show he or she needs a service and that if he or she does not get it, he or she will fall back.
Moving on from there is a second tranche. Very few people will turn up looking for a service they do not need or that they would like to improve their quality of life. That is a different tranche. Our first responsibility is to people with an established need. Once people establish a need, they will get the advocate. It is a point for debate.
We have teased it out enough. I will withdraw the amendment.
It is extremely restrictive. Some day someone will revisit it.
I see the points being made. It is such a broad debate about rights and so on.
Vice Chairman
Amendments Nos. 16 and 17 have been ruled out of order.
I move amendment No. 18:
In page 6, line 41, after "behalf" to insert ", either at all or in an effective manner,".
It appears Comhairle can only provide an advocacy service for children aged under 18 years where it is not reasonable to expect that their parent or guardian would be able to act on behalf of the child. I want to make it clear that this should be broad enough to cover a situation where the parent is able to act but is not sufficiently skilled to do so in an effective manner. That is important.
The Bill refers to where a parent or guardian is not able to act but sometimes a parent is able to do so, although not in a skilled and effective manner. We should include that preclusion element in the section. That is why inserting the words "either at all or in an effective manner" would deal with the situation I have outlined. For the sake of comprehensiveness, it would be worthwhile accepting this amendment.
The Deputy is a very able lawyer and obviously one must look carefully at any proposals he might put forward. Having said that, this amendment could have the effect of making the criterion unnecessarily stringent. It introduces to the qualifying criteria ideas about whether a parent is in a position to act at any level in relation to his or her child and his or her effectiveness in pursuing a particular social service. It seems overly prescriptive and could constrain the director in what is a straightforward assessment of circumstances in a case in which a parent might not be in a position to act for his or her child. It brings an extra degree of judgment to bear in terms of what is effective and what the words "either at all or in an effective manner" mean. The text is clear and unambiguous. It allows for a range of situations where a parent or guardian may not be in a position to act on behalf of a child.
I fully support and accept the Deputy's intention but I am advised that the amendment would be unnecessarily prescriptive and make the conditions stringent. One might get involved in a debate on what was effective and what the words "either at all" meant, whereas the Bill is clear and meets the same requirement.
I accept the Minister's interpretation of the section.
Vice Chairman
Amendments Nos. 19 and 20 have been ruled out of order.
I move amendment No. 21:
In page 7, to delete line 3 and substitute the following:
"(4) A person shall not cease to be a qualifying".
I move amendment No. 22:
In page 7, to delete line 7 and substitute the following:
"(5) The Board shall have regard to the follow-".
I move amendment No. 23:
In page 7, between lines 28 and 29, to insert the following:
"(5) Each application for a personal advocate shall be considered within 2 months of the date of application.".
Currently, there is no timeframe specified for the consideration of applications for a personal advocate. The Minister stated that in the first phase four to six personal advocates would be recruited, in addition to support staff. I am anxious that a timeframe be established in which a person will receive a response to his or her application.
The Minister has stated persons with an intellectual disability will be prioritised. However, there are 26,000 such persons registered in the national intellectual disabilities database. I am concerned that when the service begins, there will be a large number of applications to avail of advocacy services which clearly are in demand and that people may be disheartened if they apply for an advocate and do not receive a response for a long time. It is the idea of a timeframe that I am promoting, that each application for a personal advocate should be considered within two months of the date of application. That timeframe might be either too long or too short but a timeframe should be included in the Bill. Timeframes are included in other similar legislation. I am unsure of the Minister's view of the matter.
I would be nervous in inserting a timeframe. I am advised — of course, the Deputy would say I would be — that it is hoped applications will be considered much quicker than within two months. It should be done almost immediately. It is the solid intention to consider applications well within two months.
As the Deputy may recall, during the years we have provided timeframes in legislation, including the Act relating to An Bord Pleanála to deal with the backlog of applications. When the deadline was looming, applicants received the answer "No"; in another week or two they might have received the answer "Yes". Therefore, one must be careful about this. Given that there are 26,000 registered persons, if the deadline was the following day, the easiest course of action for a director of services would be to state that as he or she was required by law to make a decision by 4 p.m. the following day and had not had a chance to deal with the application, the best he or she could do was say "No" and let the person concerned reapply and go through the hoops again. That might make the position worse.
We are dealing with people with special needs and disabilities. It might be useful to consider including a timeframe in the Bill to ensure each application would be considered within a reasonable time. Perhaps the Minister will consider taking on board this suggestion. I take his point. I picked a timeframe of two months but one could pick a period of two weeks or six months. We must insert a caveat because there is no such provision in the Bill.
There is a right of appeal to an appeals officer.
That is only applicable once the initial decision has been made. If this takes months, the appeals officer is out of business.
I take the Deputy's point. We all would wish that they would make quick decisions but picking a month could be counterproductive. I will think about the matter. I do not mind considering if there is a way of including something that will require someone to act in a reasonable time.
I move amendment No. 24:
In page 7, to delete line 29 and substitute the following:
"(6) The service provided to qualifying persons".
Vice Chairman
Amendments Nos. 26 and 58 are related and will be discussed together.
I move amendment No. 26:
In page 7, line 30, to delete "sections 7B to 7E" and substitute "sections 7B to 7F".
Amendment No. 58 provides for the insertion in section 5 of new provisions in section 7E, subsections (1) and (2). It also provides that the existing section 7E shall become section 7F, which is a technical amendment.
Section 7D(5) provides that a person who obstructs a personal advocate in the course of his or her work shall be guilty of an offence and liable to a fine or imprisonment, or both. The Parliamentary Counsel has confirmed that section 18C of the Interpretation Act 2005 allows the word "person" in section 7D(5) to be interpreted as having a wider meaning to include companies and unincorporated bodies, as well as individuals.
The new section 7E provides that where an offence under section 7D(5) is committed by a body corporate and the offence is proved to have arisen because of the action or inaction of an individual connected with that body, that person, as well as the body corporate, shall be guilty of an offence. It further provides in subsection (2) that where the body corporate is managed by its members and the offence is attributed to a member in a management role, he or she shall be guilty and liable to be proceeded against.
The amendment is being brought forward on the advice of the Parliamentary Counsel. It is a standard provision which is contained in other legislation dealing with corporate bodies. Members might be familiar with this legislation.
Amendment No. 26 is consequential, if we accept amendment No. 58.
The Minister raised the matter on Second Stage.
I move amendment No. 27:
In page 7, to delete line 33 and substitute the following:
"(7) The Board may, with the approval of the".
Vice Chairman
Amendments Nos. 30 and 31 are related to amendment No. 28. They will be discussed together.
I move amendment No. 28:
In page 7, between lines 39 and 40, to insert the following:
"(7) The Minister, shall within 6 months of the passing of this Act, prepare and lay before each House of the Oireachtas a report on the expansion of the role of the Director of the Personal Advocacy Service, to include the role of Director of Advocacy Services, involving management of all advocacy services provided by Comhairle and by community and voluntary organisations.".
This amendment returns to an issue we discussed earlier, the possibility that there will be a two-tier advocacy service. There is a danger that people will opt increasingly for the service being set up under this legislation because, as Deputy Finneran stated, it will have backup and the authority that others will not have. The danger is that people seeking personal advocates will go to where they consider the best service to be on offer. They will, therefore, gravitate towards the State service. We have just passed an amendment which will make it an offence to obstruct a personal advocate in his or her work. I take it that this will not apply to personal advocates employed by voluntary bodies.
I ask the Minister to examine these matters to see if it would be possible to bring all personal advocates under one umbrella. I presume they could remain in the employment of voluntary organisations but they would have the same authority, role and remit and receive the same training as those advocates to which the legislation refers. I am trying to avoid the establishment of a two-tier system. I have been approached by a number of voluntary advocates who are extremely concerned about this matter.
Amendment No. 30 is similar and states that "The Director of the Personal Advocacy Service shall be responsible for the regular review of the work and performance of personal advocates". This could be taken in two ways, the first of which is that it could be viewed as a standalone measure whereby the director will review the work and performance of the personal advocates for whom he or she has responsibility.
Amendment No. 31 states:
"(8) The Director of the Personal Advocacy Service shall, upon request from a Committee or Sub Committee of a Committee (other than the Committee on Members' Interests of Dáil Éireann or the Committee on Members' Interests of Seanad Éireann) appointed——
(a) by Dáil Éireann,
(b) by Seanad Éireann, or
(c) jointly by both Houses of the Oireachtas,
to——
(i) examine matters relating to the Department of Social and Family Affairs,
(ii) examine matters relating to the Department of Justice, Equality and Law Reform, or
(iii) examine matters relating to the personal advocacy, give evidence to that Committee on the performance, by him or her, or by personal advocates, of his or her or their duties in relation to the Personal Advocacy Service functions under this Act.".
Acceptance of the amendment would make the service accountable to this or a similar committee.
On amendment No. 28, an annual report is laid before the Houses by the organisation. In any event, reports to the House should come from the board or the chief executive. The director of advocacy services will be obliged to report to the chief executive and the board. It is not a statutory role that is completely independent of the board and the chief executive. The person who will become director of personal advocacy services will be obliged to comply with that management structure. The chief executive will report by means of the annual report that is laid before the Houses, which can be debated in the normal way.
With regard to the performance of personal advocates, the contents of amendment No. 30 are fully comprehended by the legislation. In other words, the director of personal advocacy services shall be responsible for the regular review of the work and performance of personal advocates. That is the basic work of the director. I take the Deputy's point about him or her not being responsible for other advocates working in the voluntary and community sectors and we have gone over that ground. Those other advocates are not employed by the State in the same sense as those employed by Comhairle, which is to become the citizens information board. I have no difficulty with the intention behind the amendment. Only through the guidelines will the director be able to deal with the other advocates about whom the Deputy is concerned.
On amendment No. 31, we do not need to legislate for the director to appear before a committee or sub-committee on request. In any event, it would not be appropriate to legislate separately for the director because the chief executive would be the relevant person in this regard. However, I am aware of a requirement for people to appear before the Committee of Public Accounts. There is a technical reason for the latter in respect of which I will communicate further with the Deputy at a later date.
Did the Minister state that he is accepting amendment No. 30?
There is no need to do so because what the Deputy is seeking must happen as a matter of course. The director must be responsible for reviewing the work and performance of personal advocates.
I move amendment No. 29:
In page 7, to delete line 40 and substitute the following:
"(8) Subsections (2) and (4) of section 14 shall".
I move amendment No. 32:
In page 7, to delete line 43 and substitute the following:
"(9) The Director shall manage and control the".
Vice Chairman
Amendments Nos. 33 to 36, inclusive, and 49 are related and will be discussed together.
I move amendment No. 33:
In page 7, between lines 46 and 47, to insert the following:
"(10) (a) The Director shall, if the Director or a member of the staff of the Board who is authorised to perform the functions of the Director under section 7B is informed by a person (in this subsection referred to as a ”specified person’) that he or she is of opinion in relation to another person that the second-mentioned person is a qualifying person, provide information to the person in relation to the Personal Advocacy Service and, in particular, the requirements of section 7B in respect of an application for the assignment of a personal advocate to a person.
(b) In this subsection ’specified person’, in relation to another person, means a member of that person’s family, a carer of that person or any other person, including a member of an organisation or group, who is actively involved in promoting the health, welfare or well-being of that person.”.
Amendment No. 33 amends section 7A by the insertion of subsection (10)(a) and (b). The proposed subsection (10)(a) of section 7A provides that where the director or a member of the staff of the citizens information board who is involved in the personal advocacy service has information about a person who may be entitled to the services of a personal advocate, he or she will provide information about the personal advocacy service to the person in question. This information will include how to make an application in respect of a personal advocate and the fact that any person may apply for the service on behalf of another individual. That is an important point. Amendment No. 41, which inserts a new section 7B into the principal Act, specifically allows for such applications.
Subsection (10)(b), as proposed in amendment No. 33, specifies that any person who has an interest in or who is involved in the welfare or well-being of a person with a disability and who is of the view that the person concerned may be entitled to the services of a personal advocate, may approach the personal advocacy service and inform it about the individual in question. This means that a family member, a carer, a member of an organisation or group or a voluntary organisation working on behalf of people with disabilities can contact the personal advocacy service and the director will follow up on the notification.
The amendment is designed to address concerns in respect of people who, because of their disabilities, may not be aware of the potential of the advocacy service. The overall intention is to provide for a proactive service. This was specifically sought after the Bill was published by the disability organisations. We agreed to include a requirement that the board be proactive as opposed to waiting for people to contact it.
Amendments Nos. 34 to 36, inclusive, and 49 are technical in nature and must be made if amendment No. 33 is accepted.
I move amendment No. 34:
In page 7, to delete lines 47 and 48 and substitute the following:
"(11) The functions of the director under subsection (10) and section 7B may be performed by such members of the".
I move amendment No. 35:
In page 8, to delete line 1 and substitute the following:
"(12) Regulations under this section may con-"
I move amendment No. 36:
In page 8, to delete line 6 and substitute the following:
"(13) Every regulation under this section shall".
I move amendment No. 37:
In page 8, line 15, after "of" to insert "the".
I am advised by the Parliamentary Counsel that the correct expression is "a person who is of opinion" and that the change proposed in the amendment would not be correct. I have a thesaurus somewhere if the Deputy wishes to fight about the matter.
Vice Chairman
Amendments Nos. 38 to 41, inclusive, are related and 42 to 48, inclusive, are consequent on amendment No. 41. Therefore, amendments Nos. 38 to 41, inclusive, and 42 to 48, inclusive, will be discussed together.
I move amendment No. 38:
In page 8, line 17, before "may" to insert the following:
"or a person applying on behalf of a person that he or she believes to be a qualifying person,".
The Minister dealt with this issue in amendment No. 33. It is important that a person be permitted to apply for a personal advocate on behalf of a qualifying person, as is the case when making an application for an assessment of need under the Disability Act 2005. Many people with intellectual disabilities may not be capable of submitting an application without the assistance of a family member, close relative, friend or representative organisation, which the Minister addressed in his amendment. He referred to three levels to ensure a proactive, accessible service, which would target people with disabilities who are most in need of a personal advocate. The amendment would permit the director to proactively follow up cases. The Minister said he wanted to establish a committee, which would include representatives of disability interest groups, to advise him on what further measures can be put in place at administrative level to ensure people with disabilities most in need of the new service are targeted for attention, which is welcome.
Amendment No. 39 is probably superfluous but the Minister might comment on it, while amendment No. 40 is technical.
I propose to accept amendment No. 40.
That will be a headline in tomorrow's newspapers.
It is grammatically better than my proposed wording. Amendment No. 41 inserts a new subsection (2) in section 5 to the effect that any person may apply to the director for the assignment of a personal advocate on behalf of a person with a disability. Amendment No. 43 amends subsection (4) to provide in such cases that the director will also notify the person who applies on behalf of another person about the decision on the application. The provision allows that an application for a personal advocate be made be a family member, carer, friend, care worker, social worker, general practitioner, public health nurse, service provider, voluntary or any individual or organisation with an interest in the welfare and well-being of the person concerned. The person who applies, as well as the person with the disability, will be advised about the outcome of the application by the director where such notification is appropriate.
Section 7(b)(i) provides that an application for a personal advocate may be made by any person in writing or in such other form as may be specified by the Minister. The intention of the provision is to allow for a variety of application formats to be accepted by the director, having regard to the circumstances of the person who may be in need of the service of an advocate. While an application in writing is the format mentioned, a full application form, as proposed in amendment No. 39, may not be suited to all applicants’ circumstances. It is not proposed to provide for such detail in the legislation. Amendments Nos. 42 and 44 to 48, inclusive, are consequential if amendments Nos. 41 and 43 are accepted.
The Minister has addressed amendment No. 38 but the only advantage to amendment No. 39 is that on an application form one can tick all the boxes whereas a simple letter may not cover everything. However, I take on board what the Minister said.
I move amendment No. 40:
In page 8, line 17, after "or" to insert "in".
I move amendment No. 41:
In page 8, between lines 22 and 23, to insert the following:
"(2) An application under subsection (1) may be made by any person on behalf of an applicant.".
I move amendment No. 42:
In page 8, to delete line 23 and substitute the following:
"(3) The Director shall determine whether or".
I move amendment No. 43:
In page 8, to delete lines 28 to 30 and substitute the following:
"(4) A decision to grant or to refuse to grant an application under subsection (1) shall be made and the applicant concerned and, if appropriate, the person who made the application on his or her behalf shall be notified of it by".
I move amendment No. 44:
In page 8, to delete line 34 and substitute the following:
"(5) If the grant of an application under subsec-".
I move amendment No. 45:
In page 8, lines 35 and 36, to delete "subsection (3)" and substitute "subsection (4)".
I move amendment No. 46:
In page 8, to delete line 40 and substitute the following:
"(6) If the grant of an application under subsec-".
I move amendment No. 47:
In page 8, to delete line 54 and substitute the following:
"(7) Subsection (6) shall not apply to a decision".
I move amendment No. 48:
In page 9, to delete line 3 and substitute the following:
"(8) A document purporting to be a certificate".
I move amendment No. 49:
In page 9, line 6, to delete "section 7A(9)" and substitute "section 7A(11)".
I move amendment No. 50:
In page 9, to delete lines 31 to 34 and substitute the following:
"(i) the substitution of the following subsection for subsection (1):
‘(1) Where any person is dissatisfied with the decision given by the Director, the question shall, on notice of appeal being given, by or on behalf of that person, to the Chief Appeals Officer within the prescribed time, be referred to an appeals officer.',
and".
This amendment will allow anyone to appeal on behalf of a person to the chief appeals officer within the prescribed limit if he or she is dissatisfied with the decision. It is an appeal mechanism. It is in keeping with amendments Nos. 41 and 43, which provide that any person can apply for a personal advocate. If other people are allowed to make the application, it is sensible that they should be allowed to make the appeal on behalf of the applicant. An appeal system is important.
Is that a reference to the chief appeals officer of the Department of Social and Family Affairs?
Yes. The chief appeals officer is an independent officer.
We raised this on Second Stage because it was not clear.
I move amendment No. 51:
In page 10, lines 10 to 12, to delete all words from and including "shall," in line 10 down to and including "conclusive" in line 12 and substitute the following:
"may, subject to sections 317, 318 and 327, be appealed to the Office of the Ombudsman".
In many instances it is possible to make a further appeal to the Office of the Ombudsman, even if the chief appeals officer does not agree. The Ombudsman's office has disagreed with the chief appeals officer in a number of cases and overturned decisions. Does the Ombudsman legislation provide for a further appeal to be made to the Office of the Ombudsman following an unsuccessful appeal to the social welfare appeals office? If not, it should be included. The office has been proactive in this area and the Ombudsman has examined decisions independently.
The Ombudsman's office has the power to investigate and oversee the actions and decisions of appeals officers and access to the office will not be changed. The amendment is, therefore, not needed.
I move amendment No. 52:
In page 11, line 7, after "advocate" to insert "is instructed to do so or".
It would be strange if an advocate was not liable to instructions from his or her client. The draft wording leaves it entirely up to the advocate to launch an appeal, for example, against the refusal of a social welfare payment.
This is grossly incorrect in principle as it is in the first instance a matter for the person who made the application for the payment to decide whether or not a refusal should be appealed. A person could appeal directly themselves or use the advocacy service. It would be wrong if the advocate decided, having looked at the case, not to pursue this case. The ultimate decision should vest in the applicant. The advocate can give advice on the prospects for the appeal and this is what happens in legal and political circles. A politician may be advised not to run with a proposal because it may be ruled out of order but it is his or her decision whether or not to run with it and to accept the consequences.
It is sometimes the case, even with legal advice, that a client may ask a lawyer to proceed. If somebody is not able to appeal, the advocate steps in but where a person is able and does not wish to pursue an appeal, the advocate should not be the person to make the definitive decision. Barristers and solicitors will often take a view that a client should not proceed with a case but if the client persists, the barrister and solicitor will proceed. Sometimes the client is proved right and all the advice given may be proved wrong ultimately. I would not like the ability of the person to give instructions — if he or she was in a position to do so — to be disregarded and the advocate given an omnipotent view that would preclude the client from giving any instructions. The way the legislation is currently constructed means that the client is off the pitch.
The legislation states quite clearly that the personal advocate is required by law to act in the best interests of the person. Advocates are required by law to act independently and to respect the person's wishes. They are required to maintain confidentiality. They are also required to empower the person with a disability, where possible. Those are the duties of the personal advocate. They would be behaving illegally were they not to act in the best interests of the person or to respect the person's wishes. The Deputy wishes it to be more precise and prescriptive. I do not mean to make light of this but many a person came into a politician's clinic wanting certain things done immediately.
I take the Minister's point as he has explained it.
We thought better of doing precisely what the client wanted.
Vice Chairman
Amendments Nos. 53 and 54 may be discussed together by agreement.
I move amendment No. 53:
In page 11, line 32, after "may," to insert "on the production of identification,".
Other legislation provides that when people are given powers of inspection they should have some form of identification such as a certificate or warrant. I refer to the legislation governing the minimum wage where inspectors from the then Department with responsibility for employment carried out inspections under that legislation. There was a concern at the time that somebody could pretend to be an inspector.
It is even more problematic in this case because the legislation deals with vulnerable people. Wide-ranging powers are being given, such as the power to enter a day care or residential care unit on behalf of a qualifying person. It is important, given the extremely personal and sensitive nature of these actions, that a personal advocate must be the person he or she claims to be. In the legislation governing the minimum wage, an inspector entering the premises must have in his or her possession official identification as required by law and to produce this on request. I would like to see similar conditions put in place in this case.
There are also people with disabilities resident in hospitals and places of detention. Can a personal advocate also enter these places to assist a qualifying person? I am also concerned as to the conditions under which a personal advocate can enter a premises. Can the Minister include an amendment to clarify how a personal advocate goes about organising a visit to these premises and the procedures he or she must follow to do so? This is a stark power being provided in the legislation.
Section 7D(2) states:
A personal advocate assigned to a qualifying person under this Act may, for the purpose of performing his or her functions, at any reasonable time enter any place where day care, residential care or training is provided for the person and make such inquiries in such place in relation to the person as he or she considers appropriate.
It was brought to my attention that we do not know what is meant by "reasonable time". Who defines what constitutes "reasonable time"? Is it the person running the institution or the advocate? The person running the institution might say that the advocate cannot come in now because it is not a reasonable time in his or her book. The Bill also states that anyone obstructing the personal advocate in his or her function is committing an offence. It must be made clear that identification is clear, especially when dealing with people. We have seen what happened recently with nursing homes. We cannot have people wandering in without proper identification or without clear procedures. This is the reason for my amendment.
I do not have any difficulty with the content of the amendment or the policy point behind it. I would argue it is not necessary to be so prescriptive. Amendment No. 54 proposes that the Minister shall furnish every personal advocate with a certificate of his or her appointment. The Minister does not really have a role in this. The personal advocates will be designated by the chief executive of the board. They will be members of the staff of the board and it will be open to the board to present them with some form of identification or accreditation. This is a matter for the board rather than the Minister.
Procedures will be developed by the board to cover advocates visiting residential, training or other centres providing service in order to represent their clients' interests. The board will set out protocols regarding the notice to be given to the service in question and the way in which the personal advocates will authenticate themselves and explain their responsibilities. They will be provided with personal identification. This protocol will be adopted by the board at an early stage and it will lay down the type of notice, timeframes and identification. A set of definite instructions will be provided to any advocate who must enter any place where day care, residential care or training is provided. They will not be wandering around aimlessly but will be operating within a very definite protocol which the board will adopt. It is not necessary to put this into the legislation. The meaning of "reasonable time" is well tried and tested in many other pieces of legislation and has been well tried and tested in the courts. I am satisfied that what the Deputy requires is covered in the legislation.
I move amendment No. 55:
In page 12, lines 3 and 4, to insert the following:
"(d) A person, or a person acting on his or her behalf, who is unhappy with the performance of a personal advocate, may submit a complaint to the Director of the Personal Advocacy Service.”.
This amendment speaks for itself. It seeks to provide for a situation where somebody is unhappy with the advocate he or she has been assigned. What options are available to a person who is unhappy with the advocate assigned to him or her, does not get along with him or her or believes he or she is not doing his or her job properly? Those assigned an advocate will be vulnerable. I recently dealt with a case in which a similar problem arose. It involved an older person who felt intimidated by her home help but was afraid to complain in case the problem worsened. Older persons and people with disabilities who find themselves in this position are frequently afraid to make a complaint. What is the position in the event that a person with a disability has a problem with his or her advocate?
Given that personality clashes will occur, the amendment proposes that persons may submit a complaint to the director of the personal advocacy service. This brings us to the question of who minds the minders. We all assume that advocates will be saints and will do fantastic work. What if this is not the case and a personality clash develops? To whom should the person on whose behalf the advocate acts address a complaint?
The board has a strong corporate governance customer complaints procedure in place and will deal with complaints in a professional manner. It is not necessary to provide in legislation that a person may submit a complaint as there is nothing to prevent a person from doing so.
I move amendment No. 57:
"In page 12, between lines 13 and 14, to insert the following subsection:
(6) The following persons may notify the Minister that an offence has occurred under subsection (5):
(a) a personal advocate;
(b) a qualifying person;
(c) members of a qualifying person’s family;
(d) a carer; or
(e) any combination of the persons mentioned in paragraphs (a) to (d).”
While this amendment may be superfluous, it is important that the Minister should be notified about offences committed under the legislation. Will he clarify whether persons acting in the interests of the qualifying person, other than the personal advocate, may notify the Minister that their work is being hindered?
The Deputy has prescribed a list of people who may notify an offence. This is unduly prescriptive because anyone can notify an offence.
I move amendment No. 58:
In page 12, to delete lines 25 to 32 and substitute the following:
7E.—(1) Where an offence under section 7D(5) is committed by a body corporate and is proved to have been committed with the consent, connivance or approval of, or to have been attributable to any wilful neglect on the part of, any person, being a director, manager, secretary or other officer of the body corporate or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(2) Where the affairs of a body corporate are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.
7F.—The Board, with the approval of the Minister and subject to such terms and conditions as are considered appropriate, may arrange for the functions of personal advocates under section 7D to be performed by persons other than members of the staff of the Board and sections 7A to 7E shall, with any necessary modifications, apply to such persons.".".
I move amendment No. 59:
In page 12, line 40, to delete "3" and substitute "4".
The amendment proposes to remedy an anomaly I noted in my Second Stage speech. Representatives of people with disabilities made up 25% of the larger board. While I accept the Minister requires that the board of the new body be smaller, his proposal to appoint only three representatives from the disability sector to a board of 15 members reduces its proportional representation on the new body. I propose to increase from three to four the number of representatives of the disability sector on the board as this figure is more in line with the original board. I ask the Minister to respond favourably to my amendment.
The change in the size of the board provided for in section 6 is proposed for reasons of operational efficiency and is in line with a general trend towards smaller boards in the State sector. The services are intended to meet the diverse needs of people, including those with a disability, those living in isolated areas, immigrants and others dealing with a range of problems. The size of the board will be reduced from 20 to 15 members. When membership numbered 20, five members of the board represented the disability sector and the Department of Justice, Equality and Law Reform was also involved.
The proportion of board members representing the disability sector was 25%. The Minister's proposal is to reduce this proportion to 20% when the smaller board is appointed.
Similar circumstances arise when small and large parties enter a coalition government. The larger party ends up with proportionally fewer Cabinet Ministers than the smaller party.
Why not increase the number of board members to 16 and the number of representatives from the disability sector to four?
I am not trying to dilute the sector's input. The Deputy's point is that five members from a total membership of 20 amount to 25%, whereas three members from a membership of 14 amount to 20%.
Yes. Reducing the proportion of representatives from the disability sector sends out a bad message.
I will consider the possibility of appointing further representatives of the disability sector when the remaining 12 board members are appointed.
That is dependent on the good will of the Minister in office at any given time.
It also depends on whether a strong case is made. There is no reason the Minister of the day could not appoint other representatives of disability represents from among the group of 12 board members. The only reason for the reduction is mathematics and the need to get the numbers right. There is no hidden agenda.
I hope not and I hope the Minister does not already have 12 people in mind for the positions.
The issue raised by the Deputy can be resolved. The Minister can include, among this group of 12 board members, people representing broader disability interests.
While I am conscious we must deal with three further amendments, it is important to note that the reduction in the proportion of board members representing the disability sector from 25% to 20% sends out a bad signal. By increasing the number of representatives of the sector from three to four, the Minister would correct this imbalance.
I undertake to give consideration to correcting this imbalance through the other 12 appointments. While this does not fix the Deputy's problem legislatively, it will help in the short term.
In that case, I will withdraw the amendment and resubmit it on Report Stage.
Will the board be gender balanced?
Yes.
I move amendment No. 60:
In page 13, before section 8, to insert the following new section:
8.—Section 23 of the Principal Act is amended by the substitution of the following subsection for subsection (1):
"(1) The Chief Executive shall, whenever required to do so by the Committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General, give evidence to that Committee on--
(a) the regularity and propriety of the transactions recorded or required to be recorded in any book or other record of account subject to audit by the Comptroller and Auditor General which the Board or the Chief Executive is required by this Act to prepare,
(b) the economy and efficiency of the Board in the use of its resources,
(c) the systems, procedures and practices employed by the Board for the purpose of evaluating the effectiveness of its operations, and
(d) any matter affecting the Board referred to in a special report of the Comptroller and Auditor General under section 11(2) of the Comptroller and Auditor General (Amendment) Act 1993 or in any other report of the Comptroller and Auditor General (in so far as it relates to a matter specified in paragraph (a), (b) or (c)) that is laid before Dáil Éireann.”.”.
The purpose of the amendment is to clarify the responsibility of the chief executive to appear before the Committee of Public Accounts and be held accountable to that committee.
I move amendment No. 61:
In page 13, before section 8, to insert the following new section:
8.--The Principal Act is amended in section 24 by the substitution of the following for subsection (1):
"(1) The Board shall, not later than the 30th day of June in each year, make a report to the Minister (in this section referred to as the "annual report") in such form as the Minister may approve, on the performance of its functions and activities, including the functions and activities of the Personal Advocacy Service, during the preceding year and the Minister shall cause copies of the report to be laid before each House of the Oireachtas not later than the 31st day of October in each year.".
The amendment speaks for itself. It provides that accountability for the service should not only cover financial and economic matters, as required under the previous amendment in the name of the Minister, but that the functioning, administration and effectiveness of the service should be addressed in the annual report of the Comptroller and Auditor General. This should apply in particular in the early years of its operations to ensure more people become aware of the service and Oireachtas Members are able to study how well it is working.
Non-financial information such as details on the personal advocacy service and different supports must be included in the annual report.
I move amendment No. 62:
In page 13, between lines 16 and 17, to insert the following subsection:
"(2) The Principal Act and this Act may be cited together as the Citizens' Information Acts 2000 and 2006.".
The amendment is self-explanatory.
I cannot accept the amendment without first having had sight of it.
I will resubmit it on Report Stage.
I thank the Minister and his officials for attending.