SECTION 53.

Amendment No. 187 is in the name of An tAire. Amendment 189 is cognate. Amendments Nos. 187 and 189 may be taken together.

I move amendment No. 187:

In page 23, subsection (1), line 36, to delete "section 3 or 4" and substitute "section 3, 4 or 42".

The purpose of these amendments is to permit health boards to impose charges in respect of the provision by them of pre-school services under section 42. As I explained when we were dealing with section 42, health boards are being given the authority to provide pre-school services for children in their areas. I would expect the boards to give priority to services for children who are deprived and disadvantaged and whose parents would not be able and would not be asked to pay for the service. However, situations could arise in which children from better-off backgrounds would attend health board services. For example, a health board might decide, as a matter of policy, to open a service to all pre-school children in an area, rather than having separate services for the disadvantaged only. It is appropriate that those who can afford to pay should make some contribution towards the cost of providing these services. This is what is proposed in amendment No. 187.

I would like to emphasise that health boards will now have the power to charge whomever or whatever they wish. The boards will have to comply with any directions which the Minister for Health may give, following consultations with the Minister for Finance. This will enable the Minister, for example, to direct that charges should not be imposed on persons on low incomes or those dependent on social welfare payments.

Amendment No. 189 is consequential and provides that the decision on whether to charge any particular individual for pre-school services would be a function of the chief executive officer of the health board and, through him, the staff of the health board rather than of the members of the board. This is already the case in relation to charges under the Health Acts, and the same practice should apply to the charges under this Bill. I hope we can find agreement.

I understand section 53 deals with charges. What specific change is being made in relation to those charges?

Section 53 reads:

"In making available a service under section 3 or 4 the health board shall, from time to time. . . . .

We are adding "or section 42". We are only making a simple technical adjustment.

They can also charge under section 42, which deals with provision by health boards of pre-school services and information.

Yes, that is correct.

Now you can charge for pre-school services but prior to this you could only charge for what services?

To clarify the situation, the fact is that health boards have not been in the pre-school service area. We are now giving them the flexibility to enter into this area and we are giving them full discretion to provide a pre-school service for all the children in an area, be they from a disadvantaged background or a very advantaged background. They can take them collectively and give one single service or they can segment the services, also, having segmented them they can charge an appropriate fee to an appropriate person who can afford to pay. Those who cannot afford it would not be asked to pay anything. This discretion would be given to health boards, in view of the fact that we are giving them the right to give this new service to the children of the nation.

Amendment agreed to.
Question proposed: "That section 53, as amended, stand part of the Bill."

I have some difficulty with section 53. This deals with charges for child care services for the first time.

Pre-school services.

That is your amendment which we did not oppose, but we are charging under sections 3 and 4 of the Bill which are in respect of child care services. Sections 3 and 4 deal with the functions and duties of health boards. They are all chargeable. I do not know if it is entirely appropriate that charges should apply for child care services. In circumstances where the children have come from a family breakdown situation is it the children themselves who are to be pursued in later life for this money or are their uncles or single parents to be pursued? I would have thought the cost of litigation on people was quite substantial already. I have some reservations about section 53 being appropriate to this type of legislation. I am aware that after the 1970 Health Act, health boards can charge for services. We are not dealing with cases where you can go to your doctor or dentist and pay for a private service. This is not that type of service. We are dealing with a situation in which family services have broken down, when child care in the home environment has broken down. I have some reservations about this.

I agree with Deputy Yates. Up to now we have been debating all the sections which have to do with administration and conditions, qualifications and so forth. Right through that, one has in mind that we will be dealing with the type of situations to which Deputy Yates referred and particularly, at present where there is an urgency about these matters, to apply a means test, as is intended here, takes all the good out of the Bill. For that reason I agree with Deputy Yates in opposing the section.

One additional point, from my direct experience with the eight health boards, if you give them the opportunity to make charges they can be very inventive in the way they do so. I know of one health board who charge for the privilege of staying overnight in a mortuary if you are deceased. In a particular health board, either the Mid-West or the Midland health board or both, I think the fee was £20 per night for a coffin in a mortuary. I understand also that another particular charge was, if you were refused a medical card and you asked for it to be reconsidered, it would not be reconsidered unless you paid £10. So what are children going to have to pay? There are a whole variety of bodies and they will be the first to say that the Oireachtas passed this legislation enabling them to do so. I oppose section 53.

I certainly share Deputy Yates' grave reservations about this. When you talk about certain service charges, maybe there are differing views about rubbish collection or other general services in a local authority area, but that is not what we are talking about in this Bill. We are talking about very sensitive vital matters in relation to children who are already socially disadvantaged and who in many instances have suffered from other abuses as well. I would be afraid of giving an open-ended permission as is in this section. It does not relate to registration charges or other charges that you need to service, such as inspection or any of those other aspects to the provisions of the Bill that it may be necessary to finance. I would be very much afraid that there would be a charge for the children that go to day care centres, or pre-school playgroups, any of these areas we have been discussing in this legislation, and that they would suffer and that their parent or parents would suffer by having to be means-tested for it. Maybe it is not the first time that the Minister for Finance has been mentioned as he is in this section 53 (2), but I am always very worried when I see "the consent of the Minister for Finance." My experience of the Minister for Finance is that he will lift money wherever he possibly can. I do not like this provision as it is here and I would ask the Minister to give a more in-depth explanation of what is intended in the section because it is rather insidious and I would not approve of it.

It seems to me that the section as a whole has a number of defects both in terms of the general body of the Bill and also in relation to some general principles. For a start in subsection 53 (3), line 43 the phrase is used "For the purpose of determining what charge, if any, should be made on any person for such a service . . .". That usage is singularly vague because it is not clear here where the charge is directed, what person we are speaking of. Are we speaking of the guardian, of the family, of the person with whom the child was lodged previously or of the child itself. That is only illustrative of a deeper defect in the section in so far as the whole trust of the legislation, which is getting such support all along from all sides, is child centred and child directed. In this case it would appear that if you do not mean the child, which might be the Minister of State's reply, you are really then changing the trust of the legislation. Subsection (3) is very vague, in that it is not clear whether it is directed at the child, at the guardian, or at the person who was in charge or whatever. Subsection (4) is defective because it is establishing from a drafting legislation point of view a bad principle in my view. It is making reference to the exceptional case which is proved. It is suggesting that the board will accept it as normal that they can direct their charge at this unspecified person, and yet to exempt themselves from the charge such person will have to make a case. Finally towards the end it says "any charge which may be made by a health board under this Act may in default of payment be recovered as a simple contract debt in any court of competent jurisdiction from the person on whom the charge is made". That is just compounding all the principles of bad law because the person having been unspecfied earlier it is now saying as well that this unspecified person has freely entered into a contract. I would think that the normal construction of what is in fact a contract debt is singularly not met here in relation to this section. All subsections of this section are at best, vague and at worst unprecise. In so far as they are establishing a charge and a set of procedures for its recovery, the Bill would benefit from the dropping of the section.

I am inclined to share the misgivings expressed by some of the members in relation to this section. I do so in deference to what the Minister's views are on it. Putting in sections 3, 4 and now 42, to a certain extent tends to vagueness in that it does not actually specify what type of service can be charged for. But I do accept the rationale behind what is probably in the minds of the Department officials in that there may very well be people who will abandon children purposely and abscond from the State. Then the care of those children would fall back on the State as a charge which would be unfair on everyone concerned. There has to be some way whereby the health boards and the Department of Health can recoup any expenses that are incurred from particular people. I am just looking at what the Coalition members say and they actually seem to agree with the section. I come back to the point that it is vague in my opinion. It is vague, perhaps not necessarily in relation to the person specified but in relation to the type of services that can be charged for. This area is a minefield and it should be looked at again by the Minister.

I agree with what has been said by previous speakers in relation to the section being not so much vague as wide open. If we refresh our minds on sections 3 and 4 basically what we are talking about is child care and family support services, the duty on the health board to provide and maintain premises, and then the duty of the health board to care for children who are taken into care. The proposed section 42 is the one for pre-schools that we discussed earlier on. Maybe the area is defined as to what type of services the health board can charge for, but I would like the Minister's view on that. I agree with Deputy Higgins that this business of "any person" seems extraordinarily vague and you could — may be it is exaggerating it slightly — almost see the health board looking for a rich relative on which to lump some kind of an order. The section is too vague. I understand that there could be difficulties in the break-up of a marriage. The Minister might give a specific definition here. There may be legal difficulties later on, and "any person" seems to be very vague.

In relation to section 42, I certainly would not have any problem in regard to including pre-schools, in that it would be important in so far as we possibly can to ensure that in all the pre-schools available there is a mix. It should not be the position that if you are poor you go to the health pre-school and if you can afford it you go to the private pre-school. It would be valuable if the health board could set up a pre-school service with a mix of children. I do not see any great problem with it.

I have problems again in that there is apparently in this section no appeal system against a decision of a CEO. All of us have come across problems, particularly in relation to the medical card scheme where there is no appeal within the system. That is being rectified now by the Minister. There is no appeals system mentioned here in relation to means and so on. In general I have no problem with the principle but the section generally is that little bit vague and perhaps we should have another look at it.

The purpose of this section is to enable a health board to impose charges in respect of certain services provided under the Bill. It is not envisaged that charges will be imposed in the vast majority of cases, since most children in care and the families who avail of child care and family support services come from the lower socio-economic groups. We do not see this section creating much remuneration for the health boards, but we believe it is important to have the charge opportunity there. The 1985 Bill which Deputy Desmond brought in had the exact same section in it. The Private Member's Labour Bill brought in by Deputy Howlin also covered the situation. We are absolutely consistent in that. I refer the members to section 53 (2) which says:

In making a determination in accordance with subsection (1) a health board shall comply with any general directions given by the Minister with the consent of the Minister for Finance.

This requires the CEO to comply with any directions given by the Minister for Health, as to the rate of charges or as to the situations in which charges should or should not be levied. In the event of a charge being imposed which people did not feel they were able to meet or should not have been imposed, the appeal would go to the Minister for Health who would be the final arbiter.

Deputy Yates spoke about the medical card situation and other instances where charges were made. This Minister for Health did intervene where charges were being imposed for certain services and he directed the CEO not to charge for those services. On the medical card situation, which is not relevant to this Bill, we are setting up a very elaborate appeals system and the Minister has given very detailed consideration to that at this time. He could have set up the appeals system sooner, but he wanted to be satisfied that he had put in position a sustainable, efficient, professional appeals service that would take everything into account and ensure that, at the end of the day, the medical card applicant, who is deprived of the service, would get the maximum consideration. This section is very technical. It is there, so that people with means who are not dealing with their children in the normal proper manner, will be obliged to make a contribution. It is only for exceptional circumstances. We are very consistent in what has been proposed for the last six years and we should maintain our consistency. I would be grateful for your agreement.

I will make a very brief observation on this. Having listened to the Minister's response, section 53 (1) is the section where the word "shall" is very definitely stated.

In response to that I would have to say that the Deputy is very observant.

I have not had my fears allayed by what the Minister has said. He was previously in the Department of Finance and he would have first-hand knowledge of the way they think and work. I am very surprised at his saying that this a technical section. It is a revenue-raising section. I am concerned about subsection (5), whereby you not only take court proceedings against people who owe this money but also, after they have died, pursue their legal personal representatives. You are leaving no stone unturned to ensure that these debts will be collected. That is a very earnest intention. The fact is that there are certain types of free services which everyone is entitled to. A public bed in a public hospital is the entitlement of every person, under categories 1, 2 and 3 of the health services. The question must be asked: are our child care services to be considered the same as our hospital services, so that every citizen has a basic right to child care services? It goes without saying that this Bill is confined to people under 18 years of age. Are we to inflict on the most defenceless sector of the community a charge per hour for each social worker or per visit for each inspection under the supervision order? One fails to comprehend the imagination that will be shown by accounting officers and health boards across this country, not to speak of the Department of Finance, if this gate is open to them. It is not possible to reconcile our view on this side and the Minister's view of what child care is about when it comes to this section. I suggest that you put the question.

We should put the question but there is one other point I want to make as I am not convinced on section 53. Without becoming involved in an extraneous matter, I welcome any improvement in administration. In relation to people with medical cards, any public representative knows that if one has succeeded in making a case for a medical card recipient, under the review, that person goes off and you make the case all over again and so forth. The point in relation to the question of the assessment of means is that, if on appeal, public representatives manage to have a case under the present system reviewed, somebody's nose has been put out of joint further down the line, so almost in a sense, to be bloody-minded, they will knock the person off again the following year. Any public representative knows that this is the reality. One makes the case one year only to have to make it again the following year, and you know from your clinics that you are hitting medical card review time and you are not dealing entirely with new cases.

A Deputy

We hope to change all that.

I live in anticipation of that and will welcome it when it happens but section 53 is a bureaucratic nightmare and it does not follow the logic of the Minister's defence of it.

The Miniter said that this will be applied only in exceptional cases. If that is the case under one of the most conservative principles of legislation why are you making it necessary in relation to subsection (1), that the determination shall be made from time to time in each case? You are going to examine each case, even though you are only going to pick up the exceptional one. Then you go on in relation to what the Minister for Finance should apply and you are not only going to do this in the abstract and then decide how many cases might or might not fall within the net but also going to decide on what the level will be. In addition to that you are going to require, in respect of people who will include both those exceptions and non-exceptions, that changes of circumstances be notified by the health board. It is a kind of a Dostoyevskyan delight at that stage, because you are applying it to very few, but the bureaucrats are having a ball directing this. Subsection (5) is unsustainable. I am not a lawyer but, as regards this vague charge assessed by these procedures against people known and construing it as a contract debt, and saying you are entitled to recover it as a contract debt in the courts, to my mind, this is one hell of an assumption.

For all those reasons I will be voting against the section but I would have preferred the Minister to say he was withdrawing the section as drafted. I would also prefer him to come back with a new formula which should enable him to go after those very wealthy people, who should have resources recovered from them for the care of their children. If he had taken that line I would have been amenable to that, but I could not vote for the section as it is worded.

My Department try to be consistent and this legislation is trying to be consistent. I refer to the two previous Bills: they are exactly the same as we have proposed.

Why change the policy now?

I must admire your ability.

It was the present Tánaiste who spoke about the futility of consistency.

Considering the words of that great man, I will have to reconsider my position. This is an exceptional circumstance. Deputy Dempsey has made an excellent point. If we are to provide services we must ensure equalisation and that there is no discrimination, isolation or segmenting people into X, Y or Z. What is good for one is equally good for the other. I see the point you are making but you cannot compare a medical card service or a hospital service with a service provided for children. I will have another look at this section and see if I can clarify it and give you an opportunity on Report Stage to give your final verdict.

I would just like to remind Deputy Higgins that when the Fine Gael/Labour Coalition Government brought in the Bill about service charges they had that section in the Bill, and the Deputy opposed it. He was in the Seanad. I read the transcript recently.

Is section 53 agreed?

I made it clear that we will be opposing this section.

If Deputy Yates pursues a vote on this I will not reconsider it. I have been very flexible and fair, and now he wants a vote.

I will not be intimidated. I have made my views clear. If the Minister is going to reconsider it on Report Stage, let it be on its own merits. I am entitled to oppose this section. I feel charges are not appropriate given the type of services we have talked about and I am perfectly entitled to vote against it, and I will be doing that.

I do not want to intimidate anybody but it is obvious that this is an academic exercise by Deputy Yates for the punters outside. If he got his way he would vote out the section and he knows he cannot do it. I have given a commitment to reconsider it. Therefore, by pushing it he does not want it reconsidered and it is very unfair to push the section.

We have arrived at the situation where Deputy Yates is opposing the section. Any further consideration will not change anything, so I am asking for a vote.

Is Deputy Yates opposed to charging people who can afford it? Is he opposed to the health boards charging them for pre-school services? That is what he is voting against here.

I have made it quite clear that I do not feel that child care services should be the subject of charges.

The Minister has made it quite clear that he is prepared to reconsider the section. This is a Special Committee set up to examine this Bill in detail. Under no circumstances should naked political opportunism overtake the interests of the people we are dealing with in this Bill because it is a complicated and difficult one being dealt with in Special Committee. The Minister has been fair to all Opposition Deputies and in the interests of the Bill and the people for whom the Bill caters, the matter should be re-examined.

I agree with Deputy O'Donoghue. Deputy Yates is being irresponsible, and I would ask him to be more responsible. He has been very responsible recently in the exchanges that have taken place between the two sides. His attitude here defies logic. I know that his party does not subscribe to the kind of philosophy that he is now espousing, so to say that all services should be free across the board is going too far.

Question put.
The Committee divided: Tá, 8; Níl, 5.

  • Ahern, Dermot.
  • Fitzpatrick, Dermot.
  • Coughlan, Mary.
  • Jacob, Joe.
  • Dempsey, Noel.
  • O’Donoghue, John.
  • Fitzgerald, Liam.
  • Treacy, Noel.

Níl

  • Barnes, Monica.
  • Sherlock, Joe.
  • Fennell, Nuala.
  • Yates, Ivan.
  • Higgins, Michael.
Question declared carried.
Section 54 agreed to.