Dáil Éireann díospóireacht -
Thursday, 4 Nov 2004

Vol. 591 No. 5

Disability Bill 2004: Second Stage.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. Fahey)

I move: "That the Bill be now read a Second Time."

As Minister of State at the Department of Justice, Equality and Law Reform, I am pleased to bring before the Dáil this important legislation. The Disability Bill, once enacted, will significantly advance the position of people with disabilities and will be instrumental in sustaining progress into the longer term.

Deputies will be aware that the Bill is one element of the national disability strategy which was launched by the Taoiseach in September. The strategy has three other elements: the Comhairle (Amendment) Bill 2004, six outline sectoral plans and a commitment to a multi-annual investment programme for disability support services.

The strategy represents a commitment by Government to drive forward a significant evolution in policy and provision for people with disabilities, which has gathered momentum in recent years. Among the established building blocks are the strong anti-discrimination framework of employment equality and equal status legislation, the policy of mainstreaming services for people with disabilities and the significant increase in investment in disability services in recent years. These notable milestones set the context for the national disability strategy and the Bill.

Over the past six years, priority has been given to the development, enactment and implementation of a comprehensive framework of equality legislation. Our equality code is among the most comprehensive in Europe. Three Acts are in place, the Employment Equality Act 1998, the Equal Status Act 2000 and the Equality Act 2004. The infrastructure to underpin a modern anti-discrimination environment was established five years ago. The Equality Authority and the Equality Tribunal are active today in vindicating the rights of people who may have been discriminated against on any of nine grounds, including disability.

An important aspect of equal access is education and the support of children with disabilities to fulfil their potential through education. The Education for Persons with Special Educational Needs Act 2004 has put in place a strong framework for the transformation of special needs education policy. Enacted last July, the Bill creates rights to an educational assessment for children with special educational needs, the development of an individual education plan and the delivery of educational services on foot of that plan.

In June 2000, the Taoiseach launched the mainstreaming initiative which required public bodies to integrate their services for people with disabilities with those for other citizens. The goal is to ensure integration in the mainstream wherever possible and minimum segregation, only where necessary. The initiative superseded structures and regulations which underpinned segregated disability service provision and which were 40 years old at the time. Launching the initiative, the Taoiseach said that "moving disability into the mainstream of official action is one of the vital building blocks for a future of equality and opportunity for people with disabilities".

The Disability Bill will give a statutory basis to the policy of mainstreaming public service delivery. In addition, the Bill establishes an innovative system for sectoral planning which will ensure that key mainstream sectors, such as environment, transport and employment and training, will have clear goals for delivering mainstream services to people with disabilities and plan to implement these goals in a transparent way.

Two support agencies — the National Disability Authority under the aegis of my Department and Comhairle under the aegis of the Minister for Social and Family Affairs — were established to support mainstreaming in a special way. The National Disability Authority Act 1999 supports a new environment for disability service provision. Even in the four short years of its existence, there is ample evidence today of the positive influence of the NDA's work.

In today's society, access to information is crucial to participation. The Comhairle Act 2000 established Comhairle as a mainstream information provider with a special role as the essential link between individuals and families and the services and supports they need. The Comhairle (Amendment) Bill 2004 further strengthens the role of Comhairle in providing personal advocacy services to vulnerable adults and children, as they seek to access both disability-specific and mainstream services.

Side by side with equality and mainstream policy development, there has been a significant increase in spending on disability specific services. This year, some €2.5 billion, representing almost 7% of gross current public expenditure on services, will be spent in this way. This figure does not take account of income support and other services provided through the Department of Social and Family Affairs. Nor does it take account of the fact that many people with a disability participate in, or benefit from, mainstream public service programmes and services. The figure for the current year of €2.5 billion compares with expenditure of just under €0.8 billion in 1997, a three-fold increase in seven years.

In the period 2000-02, the Government put in place a three year investment programme, which has become known as the Cowen package, for people with intellectual disabilities and autism. This resulted in the provision of additional revenue and capital funding of over €220 million over the period of the programme to target key support services.

Building on this successful experience, the Government has given a clear commitment to a five year multi-annual investment programme that will give the same level of assurance in the case of both capital and current funding. The programme will have a multi-annual capital element for disability-specific services which will be developed within the overall system of five-year multi-annual capital envelopes.

The programme will also have a multi-annual element which is an unprecedented initiative where current spending on services is concerned. Generally, current funding to run all Government services is allocated on a year-to-year basis, taking into account existing commitments and expected revenue. The new approach will apply to current funding in the case of certain high priority disability support services. The level of funding will be settled within the Estimates and budget process, which is now under way.

Having described the setting in which the Bill will operate, I now turn to the Bill itself and the way it was prepared. The Bill is fairly unique among the legislation that comes before this House. It seeks to make provision for services that come within the ambit of a wide variety of Departments and State agencies. Knowing the cross-departmental nature of the work envisaged, the Government decided at an early stage to refer the process of overseeing the preparation of the Bill and the national disability strategy to the Cabinet Committee on Social Inclusion. The committee, which comprised 11 Ministers as well as concerned Ministers of State, met regularly for this purpose and has been supported in its work by a cross-departmental group of senior officials. In the course of its deliberations, the committee oversaw development of the scope and framework for the Bill and took decisions on the way forward on key policy issues.

The Bill has been the subject of extensive consultations with interest groups. Following a request from my Department in April 2002, the National Disability Authority brought together a group representative of people with disabilities, their families and carers and service providers in the sector. The group, which is called the Disability Legislation Consultation Group, has provided meaningful dialogue at national level, both within the sector and with Government. There has been regular contact by senior officials and Ministers with the DLCG over the past two and a half years. These meetings, together with the DLCG document, Equal Citizens, have allowed the committee and the senior officials working with them obtain a detailed understanding of the issues of concern to the DLCG in relation to the legislation.

The Bill was drafted to take account of proposals in Equal Citizens such as a right to an independent assessment of need, transparency as to related services, a right of redress, mainstream service provision and the 3% target for the employment of people with disabilities. An outline of the Bill was presented by senior officials to the DLCG earlier this year. The shape of the Bill, as initiated, and the national disability strategy reflect a number of important elements sought by the DLCG and agreed by the committee.

The Bill contains no clause specifically to protect the State against litigation for the breach of statutory duty — the much discussed section 47 in the Disability Bill 2001 which was unacceptable to disability groups. The absence of such provision represents a fundamental shift in Government policy and was taken to accommodate widely held concerns.

Another major concern of the disability legislation consultation group has been that the Bill would be supported by a multi-annual funding package for disability services. The Government's commitment to an unprecedented multi-annual investment programme shows the special concern of Government for disability issues and is evidence of its strong, positive response to the DLCG proposal.

The Bill implements the DLCG proposal that a sixth sectoral plan dealing with training and employment issues be prepared. It also provides for regulations to ensure that liaison officers undertake a periodic review of each individual's service statement to ensure its contents are being satisfactorily implemented.

A main issue for some disability groups has been the question of social rights. There are divergent views about how these kinds of rights may be framed and vindicated. One view is that ultimate redress in the courts is fundamental to the concept of social rights. Others recognise that social service provision for any one group must be balanced with the valid and competing needs of other service users. The statute-based rights and redress mechanisms in the Bill find their basis in this reality. The Bill provides a right to an independent assessment of need, a right to a service statement——

Ms Lynch

But not to services.

Mr. Fahey

——the content of which will have regard to resource availability, eligibility and other factors, and a right of redress and enforcement. In this respect, it provides an easily accessible statute-based means of redress as regards assessment and services, which will give real results relatively quickly and informally.

In drawing up the legislation, regard was had to benchmarks internationally. The ESRI report entitled On Rights Based Services for People with Disabilities was commissioned by my Department in 2003 to stimulate debate and gather factual information about the nature of disability legislation in other common law countries. The research shows that the commonalities in legislation internationally tend to be confined to anti-discrimination legislation. In addition, there is little consistency as to the kind of legislation, if any, underpinning disability service provision. The research dispels many assumptions and shows wide variation in the way disability specific service provision is treated in the countries surveyed, namely, Great Britain, New Zealand, Australia, the United States, Canada and Sweden. The Bill compares favourably with legislation elsewhere.

The Disability Bill is a positive action measure comprising a number of distinct initiatives which, taken together, will lead over time to a sustained improvement in the lives of people with disabilities. The initiatives in Part 2 deal with the individual health and education needs of each person with a disability. The initiatives in Parts 3 and 5 place statutory obligations on public bodies to support access for people with disabilities to mainstream public services and to public service employment. Parts 4, 6 and 7 deal with genetic testing, the establishment of a centre for excellence in universal design and miscellaneous matters.

I will outline the main provisions of the Bill. Provisions of particular importance in Part 1 are the definition of the word "disability" and section 5. The definition of the word "disability" in section 2 is in line with the definition in the National Disability Authority Act 1999. Section 5 is a novel provision which makes specific arrangements for Ministers to earmark funding for the purpose of implementing the provisions of the legislation.

Part 2 establishes a right to an independent assessment of need, an individual service statement and redress. Section 6 defines the key terms used in this Part. The definition of the word "disability" for the purposes of this Part covers persons whose disability is likely to be permanent, results in significant difficulty communicating, learning or moving and gives rise to a need for services on a continual basis. The term "health service" is defined to include a "personal social service" and "education service" and relates to the education of persons aged over 18 years in a recognised school or a programme of education, training or instruction specified by the Minister for Education and Science. The section assigns additional functions to the National Council for Special Education regarding the education of persons aged over 18 years.

Sections 7 to 9, inclusive, deal with the assessment of need. Assessment officers will be appointed by the chief executive officer of each health board and will be independent in the performance of their functions. The assessment will cover health and education services. A person who considers that he or she may have a disability may apply to a health board for an assessment of need and the assessment will be commenced within three months of the date of the application. Each assessment of need will involve the applicant in the process and result in an assessment report which will specify an indicative date for review. Services will be prioritised in the assessment report and optimal timescales for delivery will be set out.

Each assessment of need will be independent in three respects: assessment officers will be statutorily independent; the assessment will be undertaken without regard to existing service levels or related cost considerations; and the assessment will take place in accordance with standards determined by the Health Information and Quality Authority to be established within the new health structures.

Section 10 deals with individual service statements. Liaison officers will be appointed in health boards as a key point of contact for the preparation of service statements. Following assessment, a liaison officer will prepare a service statement for the person concerned. In preparing the service statement, the legislation requires the officer to have regard to the health board budget for the year in question and other criteria, including the eligibility of the person for the services and the practicability of providing the service. Otherwise, the service statement will seek to reflect the priorities and timescales for the health and education services identified in the assessment report.

In an effort to aid service co-ordination, section 11 specifies that liaison officers, with the consent of the person concerned, will contact service providers outside the health and education sectors and give them any information needed to assist access to services, other than those provided for in the assessment of need.

Section 12 requires health boards to keep records as an aid to service planning. Health boards must compile a report each year for the Minister for Health and Children of the services being provided and the aggregate needs identified in assessments, including the priority of these needs and the optimal timescales for delivery.

Part 2 provides for three stages of redress, namely, complaint, appeal and enforcement. Section 13 allows for the making of a complaint with regard to an assessment or service. Section 14 requires the chief executive officer of a health board to appoint complaints officers who will be statutorily independent in the performance of their duty. Following examination of a complaint, the complaints officer may seek to resolve it informally. If this is not possible, he or she will make a recommendation to the chief executive officer who may arrange to give effect to the recommendation. Alternatively, the CEO may decide not to implement the recommendation if he or she is of the opinion that it would not be appropriate to do so in light of resource constraints or practicability. In this event, he or she must inform the complainant.

Sections 15 to 19 and the Schedule to the Bill deal with the appeals officer and appeals. The appeals officer will occupy an independent statutory office and will be appointed by the Minister for Health and Children. The officer will hear appeals from all health boards, will have staff to whom functions can be delegated and a budget to undertake the work, and will make an annual report to the Minister for Health and Children on his or her functions. A copy of the report will be laid before both Houses of the Oireachtas. Under sections 17 and 22, the appeals officer is given substantial powers to call witnesses, obtain documents, enter premises and ultimately secure a search warrant from the District Court if necessary.

A recommendation of a complaints officer and an opinion of a health board CEO can be appealed to the appeals officer. He or she will be required to take account of the same considerations as the complaints officer did in coming to a decision — among them resources, eligibility and practicability considerations. Section 19 provides that a determination of the appeals officer will be final and not referable to the courts save on a point of law.

Section 18 provides that the appeals officer may arrange for mediation, unless either party to the appeal objects, if he or she considers that the issue could be resolved in this way. Unresolved cases may be considered again in the appeals process. A mediation settlement may be enforced in the same way as a determination of the appeals officer. As a last resort, where a determination of the appeals officer is not implemented, section 21 allows for application to the Circuit Court for an enforcement notice against the health board or education service provider which has failed to implement it. Certain recommendations of the complaints officer may also be enforced in this way.

Section 23 imposes a duty on public bodies to commence a rolling programme of refurbishment to make public buildings accessible. Sections 24 to 27 are key sections which require public bodies to mainstream service provision for people with disabilities. Section 28 deals with codes of practice to be prepared by the NDA.

Sections 29 to 35 require the development of six sectoral plans by the Ministers for Health and Children, Social and Family Affairs, Transport, the Environment, Heritage and Local Government, Communications, Marine and Natural Resources and Enterprise, Trade and Employment. A duty is placed on the Minister responsible for each of the sectors to prepare, in accordance with a general framework, a plan setting out the disability related services and positive action measures he or she is committed to implementing. Draft sectoral plans have already been published and will be the subject of a consultation process. The final plans will be submitted to the Oireachtas for approval within one year of commencement of the legislation.

Sections 36 and 37 require every public body to designate inquiry officers to investigate complaints made about a failure by a public body to comply with a duty in mainstream service provision under Part 3. Sectoral plans will also specify the complaints procedures that apply in each of the six plans. The decision of the inquiry officer, or the complaints officer under a sectoral plan, can be referred to the Ombudsman. Section 38 amends the Ombudsman Act 1980 to give the Ombudsman specific powers for this purpose.

Part 4 seeks to safeguard access to employment, insurance and mortgages for people who may be affected by certain genetic conditions, such as cystic fibrosis and Huntington's disease. It restricts the use of genetic data in general, especially for employment purposes, and outlaws its use for insurance purposes. The use of family history information for insurance purposes may be restricted by regulation. The provisions of this Part will be subject to review commencing no later than 1 January 2014.

Part 5 establishes a statutory basis for positive action measures to support the employment of people with disabilities in the public service. It allows each Minister to specify targets for the employment of people with disabilities in their sector, pending the specification of which the existing 3% employment target will apply. Implementation of the measures will be monitored by sectoral monitoring committees and the National Disability Authority will report to each Minister about compliance in its sector.

Part 6 provides for the establishment of a new centre for excellence in universal design within the NDA. The establishment of the centre is a commitment in the programme for Government and responds to international obligations in regard to universal design and e-accessibility. Section 50 amends the National Disability Authority Act 1999 to take account of its new role.

Universal design relates to the design and composition of buildings, products and systems so that they can be accessed by everyone to the greatest extent practicable, irrespective of any particular physical or mental feature, ability or disability. The purpose of the centre will be to achieve excellence in universal design through the development and promulgation of standards. The centre will have a particular role in pursuing this objective in electronic systems and in the promotion of universal design in courses of training for architects, engineers and other persons who design and build the built environment.

Part 7 deals with a range of issues, including covenants in leases that may impact on alterations to allow disability access; rules for broadcasting to facilitate access by people with sensory impairments; offences; changes to the size of the NDA board and related matters; repeals and exclusions. The Schedule sets out the terms and conditions of employment of the appeals officer to be appointed by the Minister for Health and Children under Part 2. It deals with such matters as selection by open competitive process, term of appointment, staff to be civil servants, accounting matters and delegation of functions.

This Bill is probably the most important legislation prepared by the Government in the past seven years. It has taken up a great deal of the Taoiseach's time, as he has taken a personal interest in the disability strategy, and that of many members of the Cabinet, Ministers of State and senior civil servants in all Departments. I believe it is good legislation. I thank all the people who were involved in its preparation, particularly the staff in my Department who worked extremely hard putting it together. I thank the Deputies for their attention and I commend the Bill to the House.

Mr. Stanton

I am happy the Disability Bill has at last come before the House. We have waited a number of years for it. The Minister is correct that it is important legislation. He said he believes it is good legislation but I will suggest later that it can be improved and I will challenge the Minister to engage with us on it.

This week I received a letter from a man who has a son with a disability. The letter was not addressed to me but to the 11 year old son. I have the father's permission to read it to the House. It puts in context our deliberations on this Bill. I have changed the names as I do not wish to identify the person involved. It states:

Dear Mark,

I am writing this letter into the unknown. I know you will never be able to read or understand it, yet it seems like the only thing I can do just now. I lay you in your cot every night, not daring to think of tomorrow, of our future, of your future. But tonight it is different. I have just been at a meeting on the new Disability Bill, and I am troubled more than I have been for a long time, yet you still make me smile, as you have done, through dark days and bright since you were born eleven years ago. Thank you for that.

I am truly at a loss as to why they won't listen. How is it that you scare them so much. Sure, you can't walk or talk and you look funny and I know it is hard for them to see you through the distractions of what to them is not "normal". But that's no excuse. We have been trying to show them for years that you are all there, a whole person — different, but nonetheless a whole person — just like them.

A few years ago they — the Government — sought to introduce a Disability Bill. It was withdrawn, because it did not recognise you for the citizen you are. The Government reacted, and for nearly two years a consultation process ensued. There was hope, they were going to listen to us, they were going to recognise that you have the right to services to access your basic human rights. I am not talking about an annual holiday to Lourdes, no, but rather the security that the State would, as it does for all other citizens, do what was necessary to allow you to live out a basic existence, free from fear of being exploited — or worse — ignored, because the money was needed for some other requirement of the State.

Tonight, Mark, I learned that they have not listened. I felt the slap in my face as real as if the hand that delivered it was there. I despair. How can we leave you to these people when our time is gone? I have been in the residential units of your future. They exist today but a few miles from our house, grown adults confined to quarters built for children, nothing to do all day, except to go slowly mad.

We thought that this Bill would cure all that, but no, more of this crazy fear that you will bankrupt the State. Poor Mark, if you only knew what a threat you are. Your life is not to be facilitated without been shackled to "the availability of resources" or the grey notion of practicability. We were not looking for money. We were looking for security. We were not looking for everything now. We knew that it would take time. A slap in the face, that's what we got. This Bill, supposedly the best thing to happen for people with disabilities since the foundation of the State, is 80% to do with the State running away and the balance a flawed attempt to give a little something.

Mark, I know you can't be angry, nor can you despair; you don't know how, but I do — I do, I am terrified that you will end up in a state of fear like so many before you.

Sleep well, my little man. Tomorrow we will try again.

Your Dad.

That is the reaction of one parent to the Bill. We have much work to do. The letter highlights what should be vital elements in this important legislation, namely, citizenship and the nature of public service. It also shows how disappointing and devastating it can be for people who find themselves or their families excluded from aspects of life and State protection that the majority take for granted.

For whom are our public services, financed by our taxes, designed? Are they for everyone or only for those people who fit into the narrow definition of "norm"— those who fit into the mould? How would we react if public services suddenly became inaccessible or resource dependent for people with brown hair, blue eyes or a particular accent? How would we react if our children were suddenly deemed to be too expensive or too different to cater for or if we were told we could not be employed because people like us did not come often enough to certain buildings to justify accommodating us? Unfortunately, this is the effect of some parts of the Bill.

How this Bill is eventually enacted will dictate what kind of a society we are and how real is our commitment to inclusiveness. This Bill should unite, not divide the House. There should be no need for debate on the empowering of people with disabilities as it should be a given. As the Minister outlined, several Acts outlaw discrimination and advocate equality for people with disabilities. It is all the more sadly ironic that the only legislation before us which contains the word "disability" in its title should have the effect of excluding, not including the very people it would appear to protect. It is almost as if the title of the Bill had been added as an afterthought — like a bad sub-editor who attaches a headline which bears no relation to the story which follows it.

Fine Gael seriously considered rejecting the Bill out of hand. We believe it is seriously flawed, obtuse and in some ways further entrenches what is already a seriously dysfunctional system. The language used is opaque and almost unintelligible at times. The structures it envisages seem to be overly bureaucratic and its effect may be the opposite of what was intended.

I have observed the reaction of legal experts who read the Bill. One stated it was possibly one of the most convoluted, turgid, incomprehensible legislation the expert had ever read and that its complexity was intentional and avoidable. This is all the more alarming when one considers that the Bill, more than any other, is being read by parents throughout the country. There was talk some years ago about using plain English in legislation, yet parts of the Bill are almost impossible to understand, even for senior legal experts. The Minister referred to section 5 but I have never read anything like section 5(3). Reading the subsection, it seems to indicate the resources allocated for people with disabilities will only be what is left over after all other resources have been spent by the health boards.

Mr. Fahey

That is wrong.

Mr. Stanton

That is what it states. It is not in plain English but it is in the Bill. It could be called a "leftover" Bill. Why was the section not written in plain English?

That it is not possible to amend the Bill and should therefore be scrapped is one argument but there is a downside to this. To reject the Bill is to allow the Government off the hook. The Government has already played politics for too long with the lives of people with disabilities following the withdrawal of the ill-fated Disability Bill 2001. To allow it the chance to waste another three years would be unthinkable.

It is our duty and responsibility as legislators to ensure that when this Bill is enacted, it will be the best possible legislation. It is our duty and moral responsibility to ensure the delivery of quality services and support to remove the barriers which hamper full participation in society. This is the challenge for the Government and the Minister of State, Deputy Fahey, who is steering through the legislation. I challenge him to engage in real, vigorous and forensic debate on the Bill and to approach this with an open mind. I am concerned because when I made a point a short time ago, the Minister of State's reaction was that I was wrong. Without engaging in debate, he decided I was wrong.

Mr. Fahey

The Deputy's interpretation was wrong.

Mr. Stanton

Neither Government nor Opposition have a monopoly on wisdom. There is much to offer on both sides. On Committee Stage I will table many amendments, as will other Deputies on this side of the House and, it is to be hoped, on the Government side. It would be a travesty if amendments were rejected simply because the Government has set its face against change.

There are precedents which may offer some comfort and hope that we may be able to lever some change from this Government. What became the Education for Persons with Special Educational Needs Act 2004 began Second Stage as very different legislation. There was opposition to many of its provisions, concern about definitions and language and hot and heavy debate ensued. The then Minister for Education and Science, Deputy Dempsey, did not stand on ceremony in regard to that Bill, for which I give him credit. He engaged with the Opposition, amended his own legislation and accepted many Opposition amendments in fact and in spirit, even to the point of changing the Title of the Bill from its original and inappropriate "Education for Persons with Disabilities Bill". The legislative process did what it was supposed to do. As somebody said afterwards, the system worked. Committee Stage and Report Stage were a two-way process. We produced an Act which has the capacity to improve equality of opportunity for people with special educational needs. It may not be perfect and lack of resources may hamper some of its provisions, but given political will, it will effect change. However, it needs to be implemented more quickly.

While I am not sure whether the Bill can be transformed, we must try to do this. I am heartened by examples of legislative co-operation but I fear the Government may not be so open-minded with the Bill. The Minister of State referred to the disability legislation consultation group which spent many months in consultation with the Government on the shape of the Bill. The group produced an excellent blueprint in its Equal Citizens document. However, what the Government has produced is a pale imitation of what was expected. Added to this, we are debating Second Stage of the Bill in advance of hearings of the Joint Committee on Justice, Equality, Defence and Women's Rights with disability interest groups which have been invited to make submissions on the Bill. Surely, the hearings should precede the debate. We could have waited two weeks until the hearings were finished before coming to the House with the full facts. It would have been wise. It is possible the Minister did not realise these hearings were going ahead with the Committee on Justice, Equality, Defence and Women's Rights. If he had, they could have been held off for two weeks to allow the various representative groups to attend and comment on the Bill, as they have had time to reflect on it. Only then should the Bill have been debated. I commend Deputy Ardagh for holding these meetings. He promised the House he would and they will take place in the next two weeks.

The Fine Gael Party expected real dialogue and improvements in the Bill. However, according to the Government, people with disabilities live in an Ireland where there are shortages and no Exchequer surpluses, but only cutbacks. They live in an Ireland which cannot afford to provide them with accessible housing, with respite or residential care. Theirs is an Ireland where their elderly parents pray for them to die before they do as the State cannot be trusted to care for them. Theirs is an Ireland which tells them that next week, next month or next year things may be better and they may get what they need. They live in an Ireland that sees them as a drain on resources, a threat to the State. Theirs is an Ireland, happy to see 60% unemployment rates and to accept inadequate income supports. They live in an Ireland that lets families struggle on at risk of poverty, under severe emotional and physical stress. For too long, people with disabilities have been consigned to another country, a poor country that cannot afford or value them. Unfortunately, this Bill entrenches that view. The barriers we place in front of people and the attitudes we have to their participation are more disabling than any impairments they may have.

The Bill's definition of disability is restrictive relative to that used in the Equal Status Act and the Education for Persons with Special Educational Needs Act. People with disabilities believe this will be used as a filter mechanism to reduce the numbers qualifying for assessment of need. The definition also excludes people with episodic needs and those who require early intervention measures. More people are excluded than included.

The Government has made much of the so-called "right" to an assessment of needs contained in the Bill. However, this is open to interpretation. The Bill states that assessment must be carried out as if there are no resource constraints. However, the assessment process itself is resource constrained and any need for services arising from the assessment is dependent on the availability of resources. Assessment officers are appointed by the health boards which cannot go over budget and must take account of available resources. No figure has been given as to how many assessment officers will be needed. If health boards have not enough money to appoint the officers, assessments cannot then take place. This "right" is already constrained by narrow definition and may be non-existent.

What qualifications will the assessment officers have? What plans are afoot to appoint assessment officers? Are there enough people in the State qualified to be officers? When dealing with the Education for Persons with Special Educational Needs Act we learned that the range and depth of disability are large. The Minister will have to take this on board. I tabled parliamentary questions on this matter but they were ruled out of order as they pre-empted today's debate. I sought answers on the qualifications necessary for employment as an officer as required under the Bill as it has not been made clear anywhere. I intend to table them again because the answers will be useful to all sides of the House.

Section 5 of the Bill is almost unintelligible. It appears that the funding for services and staffing, including the appointment of assessment officers, is circumscribed. If, after everything is paid for, the health authorities cannot afford an assessment officer, how will assessments be carried out? How independent will the assessments be if the independent assessment officer is an employee of a health board?

Many new officials are mentioned who will be part of the process, including officers for assessment, liaison, complaints and appeals. This will only lead to a cumbersome bureaucratic process as hundreds of officers will be involved. Can these numbers be reduced? Can assessment and liaison tasks be done by the same person? Is there a need for all these layers? The Government was at pains to prevent what they see as waste of money in the courts if people with disabilities sued to obtain services.

The former Minister of Defence, Deputy Michael Smith, claimed before the Bill was published that he did not believe an uncritical acceptance of a right to services approach would realise the outcome which all concerned would like to see. He was interested in ensuring everybody who has these problems would be dealt with appropriately and effectively without wasting resources in litigation. Deputy Michael Smith believes that people with disabilities cannot be trusted not to waste money, yet he was a member of the Cabinet which approved a Bill that may spend more money on additional layers of officialdom.

Ironically, the then Minister of State at the Department of Justice, Equality and Law Reform, now Minister for Defence, Deputy O'Dea, was more upfront. He said the Bill cannot ignore the reality that funding and resources are finite. He claimed that services will grow as budgetary and staffing constraints are overcome. This approach is grounded in reality and deals with the actual delivery of tangible results. Yet there is no staffing constraint in the Bill with so many people engaged in this process. Are they all essential? The danger is they will take from the delivery of services.

The services statement, to come out of the assessment of needs, will only bear relation to the services which can be provided taking account of the financial resources available at the time of the statement. It is a dead statement as it is dependent on resources available. We are told multi-annual funding will be made available. While that is welcome, the amount to be made available or what the service will cost have not been indicated. No provision is made for updating services should more money become available, and in this way the services statement will be a dead statement rather than a living statement.

No linkage is made between what is included in the services statement and the actual meeting of needs for the person assessed. No timeframe is laid down for when those needs might be met. No consideration is given to unmet needs. There is nothing progressive in this provision. There is no progressive realisation of rights, no plan for the future. A realistic target to which we must move towards must be set. However, the statement would appear to come to a full stop, trapping people in a time warp.

Of the two separate documents, one is grounded in reality of need and the other is attached to what can be provided at one time, and never the twain shall meet. No priority is given to need. It is reminiscent of Henry Ford telling his customers they could have any colour car they liked so long as it was black. What if an independent assessment of need is organised, financed independently from the health boards, that includes a statement of services which should be provided but the individual is told there are no resources? That simply adds insult to injury. We must ensure that does not happen. There is no right to an independent assessment.

Part of the letter I read at the start bears repeating:

We were not looking for everything now. We knew that it would take time. A slap in the face, that's what we got.

This Bill, supposedly the best legislation for people with disabilities since the foundation of the State, is 80% to do with the State running away and the remainder a flawed attempt to give a little something. We must change this provision. The complaints system is too complex and needs to be simplified to make it more easily accessible. We have another plethora of officialdom in the complaints process. Again, this makes the process more opaque and threatens to exclude rather than include.

The Bill must provide for a clear ring fencing of disability-specific resources. However, there is no commitment in the Bill to this provision, which is dangerous. Political choices have consigned people with disabilities to the margins. Whenever times are tough they have been told they must wait. When everyone else was told by the former Minister for Finance, Deputy McCreevy, to get out and party, people with disabilities were not given an invitation. People with disabilities are always playing catch-up. They must contend with historical and current unmet needs, inaccessibility, barriers and exclusions. While resources alone are not the answer, they are a vital link. There is a significant element of political choice inherent in the funding provisions and it is essential that adequate resources are made available to provide fully for the needs of people with disabilities. People with disabilities have waited long enough.

The Government has an unenviable record of producing major plans with a great deal of fanfare only to see them gradually shelved as more urgent short-term political priorities arise. We see what the former Minister for Health and Children has done in that regard and we cannot allow this to happen again.

The Bill must provide for a clear statutory duty on all Departments and public bodies to include people with disabilities in their plans and services, with appropriate monitoring and accountability. Public services should include all public services provided in the public system by statutory or non-statutory entities.

The sectoral plans as constituted in the Bill do not take account of the wider needs of people with disabilities. It is almost incomprehensible that the Department of the Environment, Heritage and Local Government has not addressed housing needs. How is that possible? There is no mention of the housing and accommodation needs of people with disabilities, yet every councillor and Oireachtas Member in the country knows the problems experienced year in, year out with disabled person's grants. Many motions have come before the House dealing with that issue. Coincidentally, I will raise it in an Adjournment matter today. How is it possible that such a major issue could be ignored?

The Bill does not allow for any change to current arrangements for payment of block grants to service providers and may well entrench this system. While it may provide the optimum level of services for some people, it restricts choice and operates in an opaque way for others. Neither does the Bill allow for the money to follow the client.

The issue of independent living is not addressed. I urge the Minister to consider the provision of more centres for independent living and promote independent living in general. We should help people with disabilities to live as independently as possible and provide the support and services necessary for them to do so.

The Bill has many flaws and failings, including the fact that no in-built review of legislation is possible, which is essential. The unvarnished truth is that people with disabilities have been shamefully treated by the State over many years. This has been done not out of malice but because public systems, policy, administration and delivery, have not considered that people with disabilities also have a reasonable expectation of engaging in the opportunities and challenges of living. The Disability Bill must uphold the right of people with disabilities to participate fully in society, which is not the case at present.

The key challenge for this legislation is to put right for the future the continuing wrong that has reduced the life chances in Ireland of people with disabilities, their families and carers. It is our duty and responsibility in Government and Opposition to get this right. I hope and expect the Minister will seriously engage with us in this task and that he will consider every amendment on Committee Stage and not react straight away with a "No". He should examine every amendment and listen to what the people who come before the Joint Committee on Justice, Equality, Defence and Women's Rights in the next two weeks will say. He needs to take on board their arguments, suggestions and complaints.

Mr. F. McGrath

Hear, hear.

Mr. Stanton

We want to work with the Minister to produce the best possible legislation. If the Minister does that, I will be the first to praise him, as I did the former Minister for Education and Science, Deputy Noel Dempsey, when he engaged with us on the Education for Persons with Special Educational Needs Act. We had a meaningful debate and produced legislation, which was not perfect but was much better than when it was first introduced. That is the challenge, although I am not sure how much freedom the Minister of State, Deputy Fahey, has to do this.

I have not referred to the issue of genetic data, which is an important part of the Bill, but this is something we will examine as concerns have been raised regarding it. Public service employment is another important part of the Bill.

The Minister referred to section 47 in the 2001 Act. I contend that this has been replaced by section 19 of the Bill. This provision appears to prevent people going to court. It states: "An appeal to a court shall not lie against a determination of the appeals officer other than an appeal on a point of law to the High Court." Is that constitutional? Can we as legislators tell citizens they cannot go to court to get something tested? I thought people were free to access the courts under the Constitution to get a review on any point, yet we say in the legislation that they cannot. If it is possible in this Bill, then it is possible in other legislation that we can prevent citizens going to court for X, Y and Z reasons. Does the legislation set a precedent or are there previous examples? I would like the Minister to clarify the matter.

Are non-statutory bodies and voluntary organisations covered by section 2(1)(h)(i) and (ii)? Will the Minister also clarify if respite services relate to health needs as defined in the legislation?

It has been said the complaints system is an administrative game of snakes and ladders because it appears to go on forever. This matter needs to be addressed. The Minister referred to international legislation. It can be argued the European Union has adopted methods to enforce equality by means of legal rights, such as the right not to be discriminated against, the right to reasonable accommodation and the right not to be harassed or victimised. However, the Bill differs very much from that in its approach.

I received correspondence from the Irish Council for Social Housing, as I am sure did other Members. It is concerned about housing provision for disabled people and maintains it is a crucial issue. Many low income disabled people are unable to access suitable accommodation, a fact of which I am sure the Minister is aware. Availability of supported accommodation for persons with intellectual and mental disability is also in short supply. The Bill does not refer explicitly to housing. A central part of the Bill is that it provides a statute-based right to an assessment of disability relating to health, personal, social service and educational needs. This should be amended to include provision for the assessment of housing accommodation needs.

A great deal of work needs to be done and we should work together on it. The Bill needs to be taken apart and put together properly.

Ms Lynch

We are at the beginning of a journey that will be long and rigorous. Throughout my lifetime, perceptions of disability in Ireland have changed. Mostly, that change has been for the better. In the past, disability in many forms was hidden away and people with disabilities were stigmatised, pitied and sometimes institutionalised. Certainly disability was seen as placing a finite limit on the potential of the person. We all know of cases where people had disabled children that we never realised existed and sometimes it was even worse than that.

I recall hearing that the parents of a new-born baby with Down's syndrome were being punished because the baby had been conceived outside marriage. The term mongoloid, not Down's syndrome, was used then. When we were younger we often became aware of a child who was never seen because he or she was locked up in a psychiatric hospital as a consequence of his or her disability. Almost every service for people with a disability depended on charity or on our willingness, or that of our parents, to put a few coppers into a collection box. We could turn a blind eye to disability simply because we had parted with those few miserable coppers.

It was evident that attitudes had changed fundamentally when thousands of people queued to watch events at the Special Olympics world summer games in Dublin. It was natural to associate people with intellectual disability with words such as grace, courage and competitiveness in a way that would have seemed impossible only a generation before. Had people with disabilities changed in the intervening years and discovered a potential they never had before, or had the rest of us come to realise that when one has a disability one faces barriers that are impossible to surmount without help? The barriers are all too often placed there by people and institutions whose main disability is selfishness. It is easier to blame the person with the disability rather than to tear down the barrier, to blame the size of the wheelchair rather than the narrowness of the aisle, to blame the person rather than to remove the obstacle. We have heard this repeatedly.

People with disabilities have forced us to change our perception. They are no longer forced to contend with whatever label we choose to pin on them, or pigeon hole into which we slot them, or method of charity we choose to help them eke out a limited and constrained life. For years people with disabilities have rejected the "medical model" of disability, which ascribes all the disadvantages associated with disability to that disability. They demand instead that we accept a societal model, which ascribes that disadvantage much more to the barriers that confront people with disability. Increasingly, they demand the right to be treated as equal citizens in a republic. Like me, the Minister of State does not believe that is too much to ask.

I wish it were possible to welcome this Bill because I support the demand for greater equality, and have learned that it is we who limit the human potential of people with disabilities. I would dearly like to give credit to civil servants who laboured long and hard over its drafting, to the Ministers and Government who followed through on their promises and the commitments in their programme for Government, to the negotiators on all sides who might have crafted a revolutionary piece of work, likely to put Ireland in the forefront of best practice. Above all, I would like to say to the organisations representing people with disabilities that their job was done, the years of protest and struggle had paid off, the vision they have always displayed, the generosity of spirit involved in so much to do with disability, the willingness to sacrifice, and the courage to overcome barriers, were about to be repaid by a community that recognised their indomitable spirit.

I bitterly regret that I cannot say any of those things today. This Disability Bill is shoddy, mean-spirited, badly-written legislation. The spirit behind it is motivated by an absolute determination to deny greater equality to people with disabilities. The consequences of the legislation will be a cumbersome, bureaucratic nightmare for thousands of people. It is a betrayal of the commitment made by every political party in this House, and enshrined in the programme for Government, to introduce legislation based on a commitment to rights for a group of citizens who have been receiving charity for most of our lives. Lest it be forgotten, I repeat the commitment given in the programme for Government:

We will complete consultations on the Disabilities Bill and will bring the amended Bill through the Oireachtas and include provisions for rights of assessment, appeals, provision and enforcement.

The Government completed the discussions by dragging them out so there was no possibility of any reaction to the Bill prior to the local and European elections. None of the rights promised in the programme for Government is in this Bill.

The consultations were a one-way street. The Government asked the disability movement to set up a group under the auspices of the National Disability Authority for the purposes of consultation. The authority chaired the group, made extensive representations to Government and published a widely-accepted document outlining the core elements it wanted to see in the Bill. The Taoiseach and others repeatedly praised its hard work. The process took two years and involved tremendous commitment on the part of all the disability representatives involved. As part of that process, the disability movement came to accept that rights could not be achieved in their totality overnight. The representatives began to think and talk in terms of timeframes. They put forward the idea that they were looking for a commitment to rights and their progressive realisation, which was very reasonable. They recognised that in many areas capacity would have to be built. How could one have a right to a therapy, if there were no therapists, or a right to residential care if there was nowhere to live? They had the courage to say that in their documents and at their meetings. They would have welcomed this Bill had it outlined a set of rights in principle, and set out a plan for achieving those rights on a planned and individual basis in "a reasonable time".

The Government did not listen or if it did, took every sign of reasonableness on the part of the disability movement as a sign of weakness. This legislation perverts the intentions of the movement. What should be a basis for achieving rights in a reasonable time has become instead a charter for denying rights. The only real right in this Bill is the right to access a service statement outlining all the services one will not get because it is not considered practicable to provide them. It is as good a definition of the phrase "crumbs from the rich man's table" as I have ever seen enshrined in law.

As a consequence of the Government's failure to listen, and its choice to put forward a Bill that meets nobody's needs except its own shoddy, short-term need to spin a dishonest presentation of progress, the disability legislation consultative group has been forced to submit a list of ten detailed reservations about the contents of the Bill. What sort of negotiation is it where one side can announce it has widespread agreement for the outcome, and the other side is forced to attack the fundamentals of the measure that has emerged? The Minister of State should consider that very seriously. There is a time in everyone's life when it may be hard to do the right thing but one should do it. Very few politicians in Ireland are remembered for doing something that benefited others. Those of us in a position to do that should grasp every opportunity to do so with both hands. We have begun nevertheless to debate the Bill although the disability movement requested that its introduction be delayed. The Minister did not mention that today.

The first test of any legislation of this kind must be that it is designed to improve the lives of the people most affected by it. Yet those people are asking that the Bill not be introduced until the genuine and profound reservations they have outlined are dealt with. They have asked that the Bill not be proceeded with until the movement and the rest of us are in a position to look at the whole package, the whole disability strategy of which this Bill is intended as a part.

The Taoiseach personally launched that strategy on 21 September 2004, surrounded by his colleagues in Government and by all the razzmatazz they could muster. Phrases like "lifting us to a higher level", "highest standards of international practice", and "significant milestone", were hurled around like snuff at a wake. He even had the neck to describe this Bill as honouring the commitment in the programme for Government. According to the Taoiseach, the strategy comprises four elements, of which this Bill is the central one. There is another Bill which sets up a limited and constrained infrastructure for advocacy. There are six so-called sectoral plans, incredibly vague and lacking in detailed commitment to better services. There is a promise of a multi-annual funding package, but no one will know the size and shape of that package until the Book of Estimates and the budget are published. We are being asked to buy a pig in a poke. We must pass the Bill and we will later be told whether the Government intends to fund it. That is basically what the Minister is saying. The notion that those who looked at this Bill, including all the disability groups, would not have spotted this shows more than anything else what the Government thinks about people with disability.

I said at the beginning of this debate that I would like to say to the organisations representing people with disabilities that their job was done and that the years of protest and struggle had paid off. Instead, I have to say that the struggle for rights will have to go on. Everyone recognises, including the Government, that the struggle for people with disabilities and for those who care for them is an even greater one than that of those of us who can leave behind people capable of looking after themselves, to go out and protest or go to a meeting. It is a greater struggle and that is why I do not say it easily. The Government must rely on the thought that it has effectively worn the disability movement into submission, but if the progressive realisation of rights is to be achieved, the disability movement will have to continue to campaign. The Government must not be allowed to get away with the shoddy trick that this Bill represents. I believe that this Bill is unamendable.

The betrayal in the Bill starts with the short title according to which, this is a Bill "to enable provision to be made for the assessment of health and education needs occasioned to persons with disabilities by their disabilities, to enable Ministers of the Government to make provision, consistent with the resources available to them and their obligations in relation to their allocation, for services to meet those needs." I agree with Deputy Stanton on where the funding will come in the area of priority. For a number of years, I was a member of a committee of the Southern Health Board that dealt with mental health. That was not mental disability, but mental health. Year on year, that budget suffered if there was a cut to be made. It has improved dramatically, but when one looks at where it came, it would not be hard for it to improve dramatically. Year on year it was the Cinderella of the services. I wonder, when it comes to transport, will the priority be linking up the Luas or accessible transport?

Only certain needs can be assessed, and they can only be assessed if they are occasioned by disability. Only certain provision can be made. The word that is missing from the title of the Bill is "rights". The word "rights" is nowhere to be found in any of the 51 pages of this Bill. What is a disability as defined by the Bill? In general terms, disability is defined as a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment. That definition clearly recalls the medical model of disability and is riddled with issues that require clarification. What does "enduring" mean, for example? Does a person in long-term recovery from a major stroke qualify? What does substantial restriction mean? Some of the leaders of the disability movement have demonstrated extraordinary courage and skill in overcoming the barriers to their participation. Will that courage deprive them of the right to be covered by this Bill? It seems so because one definition of disability, however restrictive, is not enough for the drafters of this legislation.

A further qualification is introduced when it comes to the issue of whether a person is entitled to an assessment. We now learn that for the purposes of assessment "substantial restriction" is to be construed as meaning "a restriction which is permanent or likely to be permanent, results in a significant difficulty in communication, learning or mobility and gives rise to a need for services to be provided to the person continually". However, it will not be necessary under this Bill to apply the harsh interpretation of "substantial restriction" to the requirement the Bill imposes on public bodies to employ a quota of people with disabilities. Let me put it the other way around. If a person has a disability, he or she may well fail to qualify for an assessment of needs under the provisions of this Bill. However, if such a person's public service employers have a quota to fill, they will be able to include that person as one of the people with a disability they employ. From the Government's point of view, this is using the legislation to have your cake and eat it. The Government can make it harder for people to qualify for the assessment, even though it is referred to in ministerial speeches as a right, yet it can make it easier for the public bodies covered by the Bill to meet their employment quotas and then claim that as an achievement of the Bill.

This hypocrisy underlines the whole Bill and any detailed reading of its provisions makes that clear. Let us examine the process proposed by the Bill so that a person with a disability can secure the services that would equip him or her to live with dignity and independence to the maximum of his or her ability and to surmount at least some of the obstacles that disability creates. Let us take an example of a girl with an intellectual disability, called Mary. Mary's disability is permanent and it will endure. She has difficulty in communication, learning and mobility and she will require a service for the rest of her life. Under the Bill, she will qualify for an assessment. This is only in respect of her health and education needs, not necessarily in respect of the residential needs that will arise in later life and not in respect of the respite care needs or the counselling that may arise for Mary's family. Under the Bill, Mary can apply for an assessment and, assuming she qualifies, it is carried out or arranged by an assessment officer employed by the health board. The assessment may well state that Mary needs speech therapy, independence and mobility training, and education on a one-to-one basis with support for her physical needs and welfare while in school. Mary can take the assessment to a liaison officer, who is also employed by the health board. His job is to prepare a service statement, outlining the services Mary will get arising from the assessment. He has to be satisfied, firstly, about the girl's eligibility under the Health Acts. In other words, he has to consider whether she has a medical card and whether her family's income exceeds the limit for eligibility. The income hurdle is the first hurdle that the Bill places in the way of a person with a disability.

If Mary passes the income test, the liaison officer will pass the educational recommendations in her assessment to the National Council for Special Education. The council is relatively new — it was established by the Government after the Jamie Sinnott case — and it is under-resourced. The council will deal with Mary's education needs in most circumstances. One would need a solicitor to understand this section of the Bill fully, however. The council may not comply with the request if it decides that the assistance concerned is not required, that such compliance would not be consistent with its functions, that such compliance would unduly prejudice the performance of any of its functions, or that it is not reasonable for the council to comply with the request immediately, having regard to the resources available to it. When one considers the process outlined in the Bill, it is clear that this legislation is an underhand way of dealing with this matter. The Bill is just one element of the process the Government is putting in place.

The liaison officer will decide whether Mary should be given the speech and occupational therapy she needs, as well as the necessary mobility and independence training. This is another example of a hurdle being erected by the Bill. In considering whether Mary will have access to the services, the liaison officer must take into account the practicability and affordability of providing the services. I am not surprised that it took a long time to draft the Bill because it must have taken an incredible effort to produce a text that stops people from getting what they were promised.

Mr. Stanton

Yes.

Ms Lynch

If no speech or occupational therapists are available, for example if the cost of recruiting them has not been provided for in the health board's budget, the liaison officer cannot include these services in the service statement. Rather than obliging the liaison officer to develop a plan in conjunction with Mary and her family, so she can access the services she needs within a reasonable timeframe and benefit from some hours of speech therapy even if full availability does not exist, the Bill obliges him to leave them out of the service statement altogether. In other words, everyone who gets an assessment is immediately at the mercy of the liaison officer's consideration of the practicability and affordability of providing the services. All such people will immediately become aware of the gap between what they need and what the State is willing to give them.

Mr. Stanton

That is it.

Ms Lynch

The problems of Mary and her family do not end there, however. This is what is known in Cork as sending the fool further. Mary and her family can complain to a complaints officer, who is again appointed by the health board, as Deputies will have guessed. They can complain about the gap that has appeared between the assessment report and the service statement. Under this Bill, however, the complaints officer must have regard to exactly the same issues as the liaison officer. Why would one bother making a case to the complaints officer? Mary and her family can go further into the bureaucratic maze created by this Bill by taking their case to an appeals officer, who is constrained in exactly the same way as the other two officers. It is more than absurd — it is cruel and meaningless.

The Bill will not oblige the Government to employ an additional speech therapist, occupational therapist, psychologist, needs assistant, care worker, teacher, doctor, nurse or carer of any description, but it will force service providers to equip themselves with hundreds of assessment officers, liaison officers, complaints officers and appeals officers, all of whom will be utterly constrained when it comes to providing services and none of whom will be capable of delivering services. A multi-annual funding package will be required for that element of the package, which will probably be the most expensive element of it. This is being done to ensure that people with disabilities will not get what they need. It is being done for a single purpose — to deny rights, rather than to guarantee them in the manner that was promised.

This Bill has many other problematic sections. The Labour Party will propose amendments on Committee Stage to make the sections meaningful or to remove them entirely. As they stand, they will do nothing to improve the quality of life of people with disabilities. There is a cruel deception at the heart of this Bill, which is not aimed at providing rights and ending inequality. It is designed to perpetuate a culture of dependence and charity in a country which is enjoying great prosperity. Even those on the Opposition side will admit that Ireland is awash with money and the coffers are bulging. The fight for the rights of people with disabilities has been described as the last great civil rights battle. I would love to tell those who are most interested in this area that the fight has been won, but I cannot do so. All I can do is tell them that they need to steel their mettle because the fight has to go on. The Disabilities Bill 2004 is worse than the Disabilities Bill 2001. It should not be before the House.

Aengus Ó Snodaigh

Ba mhaith liom mo chuid ama a roinnt leis na Teachtaí Finian McGrath agus Cuffe.

An Ceann Comhairle

Is that agreed? Agreed.

Aengus Ó Snodaigh

Táimid ag fanacht leis an reachtaíocht seo le breis is deich mbliana, ach níl an reachtaíocht lena bhíomar ag feitheamh os ár gcomhair. Bhunaigh an Rialtas an Commission on the Status of People with Disabilities i 1993. Bhí an breitheamh Mr. Justice Fergus Flood i gceannas ar an gcoimisiún mar chathaoirleach. Thug an gcoimisiún tuairisc, ina raibh 402 moltaí, don Rialtas i 1996. Is é moladh uimhir 9 an phríomh-moladh lena bhfuilimid ag deileáil sa reachtaíocht seo:

A Disabilities Act should be introduced which sets out the rights of people with disabilities and means of redress for those whose rights are denied. The Act should outlaw all discrimination against people with disabilities and should require public and private bodies, employers and educators to make reasonable accommodation to meet their specific needs.

That is what we have been waiting for, ach an gcloíann an reachtaíocht le moladh a 9 ón tuaraisc a dhein Mr. Justice Fergus Flood i 1996?

When the last Government finally got around to producing a Disability Bill in 2001, the then Minister of State, Deputy Mary Wallace, was forced to withdraw it in disgrace because it was not rights-based and did not conform with recommendation No. 9. The biggest problem was found in section 47 of the Bill, which prevented any kind of legal action to enforce the Bill's provisions. The Government established an expert body called the disability legislation consultation group in the aftermath of that debacle. The group, which was representative of the disability sector, was chaired by the National Disability Authority to ensure that the Government would get it right next time.

We have all lived in the hope that the Bill which we have demanded since 2001 — I have called for it almost on a weekly basis since I was elected to the House — would be rights-based. We also hoped it would conform with the recommendations made to the Government by the Commission on the Status of People with Disabilities and the demands made by the consultation group in its equal citizens document, which was published last February. We were disappointed when the Disability Bill was not ready in time for the Special Olympics World Summer Games, which were held in Ireland in summer 2003. We were ashamed when the Government, which had claimed on many occasions that a new Disability Bill was high on its list of priorities, failed to publish it in 2003, which was the European Year of People with Disabilities. The Government announced that it would be published in November 2003, but it has continued to stall since then. At one stage, it even tried to deflect the blame on to the disability sector, citing the consultation process for the delay in publication. I had my suspicions at that time, and they have been proven right. The delay in delivering this legislation has shown the reason. The Minister for Justice, Equality — it should be "inequality"— and Law Reform came clean and admitted to the nation that he did not believe in equality. He told us that inequality was economically beneficial, and that sums up the approach taken to this and other legislation and budget strategies that have come before the House and affected society.

We were dismayed when neither the Taoiseach nor any other member of the Cabinet spoke out to refute the position taken by the Minister, Deputy McDowell. Their silence was explained when the Taoiseach reappointed him to his new Cabinet, essentially signalling that it was the position not simply of the Minister but of the Cabinet that inequality is economically beneficial. In any other country, were a Minister for equality to make such a ridiculous statement, the ensuing scandal would have been a cause for resignation. However, that was not the case with this Government since that is its platform.

By that stage, the writing was on the wall for everyone. Publication of this Bill confirms those fears. It is a resource-based rather than a rights-based Bill. It is regressive legislation that may even cut access to services for people with disabilities. Not only does it not rectify the deficiencies of the earlier Bill by allowing people's rights to be vindicated through the courts if necessary, it sets up the ultimate legal defence for the Government, which will now be able to cite resource restrictions under the provisions in section 5, which will soon become notorious.

Let us look at section 5, which is the culprit on this occasion — last time, it was section 47. The alleged commitment to multi-annual funding, for which we have always called, regarding not only this area but many other areas of budgetary planning, is not in this legislation. As far as we know, funding still appears to be at the discretion of the Minister for Finance. Not only does section 5 not ring-fence funding, it limits Ministers' spending on disability services or accessibility provision in line with available resources. Perhaps the Minister will explain that phrase.

The absence of available funds will become a defence against a court challenge under this legislation, as appeals to the High Court against the decisions of appeals officers may be made only on a point of law. Another major problem with this legislation is that it exempts the private sector accessibility obligations in direct contradiction of the recommendations of the Commission on the Status of People with Disabilities. It all but lets the public sector off the hook, which should have been planning for the past ten years to deal with accessibility problems — the Bill gives it ten more. There is a disgracefully limited view of the public sector. Consider last year's Official Languages Act. That gave a broad definition of the public sector, listing every body funded by the State and saying that they would have obligations regarding the language. That should also be the case when it comes to accessibility and providing services to those with disabilities.

This Bill gives people with disabilities only the qualified right to an assessment. It is questionable how many people will qualify even for that, given the unacceptably narrow definition of "disability" adopted by the legislation, one at odds with that in the other equality legislation that we have. Ironically, it will set up two classes of people with disabilities in this State, and that is another of the many fundamental flaws of the Bill. After waiting so long, promising and hoping, I believe that this Bill is a disgrace. It should not proceed today but should go back to the drawing board. The Government should withdraw it and come back when it has legislation that not only conforms with recommendation No. 9 of the Commission on the Status of People with Disabilities but with the recommendations of its own disability legislation consultation group, Equal Citizens.

Nothing less than an unequivocally rights-based Bill will be acceptable to Sinn Féin and the majority of the public. My colleagues will deal in greater detail with the numerous other problems that the party and I have with the Bill. Where we can, we will table constructive amendments. However, the Bill should be withdrawn because it is fundamentally flawed, and it will be difficult to amend it to make it acceptable. It has to be withdrawn and redrafted from first principles. We need the highest possible standards of enforceable rights, and that should act as a formula for Irish people with disabilities so that they may claim their equal citizenship.

Mr. F. McGrath

I thank the Ceann Comhairle for the opportunity to speak on the Disability Bill 2004.

I have waited many years for its publication. When I witnessed all the hype and consultation, I was very optimistic that, at last, the Government was going to get it right. It is, therefore, with regret that I say that I am bitterly disappointed with the final outcome. I have significant concerns about this Bill, which is flawed, full of hot air and lacks teeth. It dashes the hopes of many families and appears to have the fingerprints of the Minister for Finance all over it. That is the reality. All one need do is consider Part 2 of the Bill dealing with assessment of need, service statements and redress, which includes such phrases as "including resource restraints", which makes a red light come on in my head. I also have other concerns on definition, complaints and appeals mechanisms, enforcement, redress and mainstreaming. The sectoral plans outlined by six Departments are extremely vague.

Before I enter into further detail of the Bill, it is important to give this debate a human face. As the parent of a daughter with Down's syndrome, I have a major issue with any Government, state or society that has a problem with protecting her rights. I almost used the word "granting". It is insulting to people with disabilities that there always seems to be a problem with finance, resources or services when it comes to dealing with their needs. The days of tipping the cap or hiding our children away in institutions are over. Today in this Chamber we say loudly that the Minister's charity can be damned since we want justice, equality and services. Perhaps someone can explain to the citizens of the State how the Government can waste €52 million on electronic voting when there seem to be problems for those working with people with disabilities, who are always seeking an extra €5 million, €10 million or €12 million. There is always a whinge from the neo-conservatives in this country — we have them here too, and some should have been booted out of the Cabinet many months ago.

Let us remember and support the 3,000 people with intellectual disabilities on waiting lists. There are 1,382 persons on residential waiting lists, 621 seeking day care places and 823 waiting for respite care. When one considers the details of such figures, one sees that one could do something about those numbers if the Government showed more guts and determination. They could be wiped out in the forthcoming budget. Let us also remind ourselves that these people are human beings with families. Many of them are parents in their 80s waiting for a service. That is unacceptable of a Government after seven years in power with massive resources available.

The new problem is not the issue of resources and finance but how we distribute them. It may be unpopular in this House to say that no matter how well crafted a disabilities Bill may be, it has little chance of working if we do not stick by the four principles of the report of the Commission on the Status of People with Disabilities of 1996, namely equality, participation, independence and choice. These are the core issues, without which we are going nowhere.

I hope the Minister will consider my concerns regarding the details of the Disability Bill when finalising the legislation. The definitions in the Bill will exclude many people from even an assessment. Section 5(3)(i) implies that resources for disability services will be available only after all other obligations are met by the Minister or public body. There is no ring-fencing of funding for disability. This could also seriously compromise a person’s right to an assessment. There is no link between the assessment report, prepared without regard to cost, or the capacity to provide any service identified as being appropriate to meet the needs of the person, and the subsequent service statement specifying the health services or education to be provided.

As it stands, people may never receive certain services outlined in their assessment report. The alternative would be for the assessor's report to list services required in order of importance and timeframes for accommodating needs. It should be feasible to work out what would be possible over a period and make provision for an annual review. The service statement prepared by a liaison officer is so circumscribed by practicability, resources and possibly by income eligibility that it could conceivably bear no relation to the need described in an assessment report. There is no mention of priority of need or timeframes to meet the needs of the service statement. There is nothing driving that statement.

The position of the assessment officer is crucial. These officers must be people of the highest calibre, with experience of people with disabilities and their families, yet there is no indication of the type of person or persons who may be appointed to the posts. The Disability Bill leaves the determination of assessments to individual health boards, unlike the Education for Persons with Special Education Needs Act 2004, where the National Council for Special Education has specific functions regarding the education of children with special needs nationally. The council can arrange for assessments of children, prepare guidelines for these assessments and monitor the progress of children nationally. The Disability Bill's shortcomings in this area will inevitably lead to variation between regions.

It is very important that we get away from the constant battling with parents with regard to legal cases. Many parents are sick to the teeth of bringing legal cases in order to get services and many find it very offensive. Even today we have another example.

Assessments relate only to health and education needs although they should cover the totality of a person's needs, including social, occupation and housing needs. Will health needs cover residential and respite services? There is a need to define health needs. Children of school going age will only have an education assessment if it is identified in the need for the provision of a health service. It would be up to a liaison officer to prepare a service statement to take account of this need.

In section 8(6)(b) there is no specification for the type of person to be employed as a liaison officer. The complaints and appeals system under section 2 is unnecessary, bureaucratic and cumbersome, and designed to limit enforcement. Because of the constant references to resources it is arguable whether there is any right to enforce. Access to the circuit court is only to enforce the decisions of an appeals officer or complaints officer. There is no provision to substantially challenge the decisions of such officers. Access to the High Court is only on a point of law.

People with disabilities and their families require a system which is easy to understand and access, and which provides quick decisions. That reality must be faced. The new Bill will create a new administrative structure on top of a system which has been heavily criticised for being administratively top-heavy. From where will the resources come for all the new officers required by the health boards and those covered by other Departments, as outlined in sectoral plans? Will the resources for this level of infrastructure be taken from the resources allocated for direct services and for the creation of new therapy posts?

Public buildings must be in compliance with part M of the building regulations by 2015 at the latest. Ministers will however have the power to order that public buildings need not comply if the building is being used as a public building only temporarily, if it will not be used as such after three years or if the cost would not be justified given the extent to which the building is used and the frequency of its use by people with disabilities. That is covered in section 23(4). If people cannot access a building they will not use it. Furthermore, a temporary building can be temporary for many years.

Section 25 of the Bill takes up an anti-mainstreaming stance, stating that separate provision of access to services is acceptable where the alternative is not practicable, is costly and will cause unreasonable delay in making the services available to others. This does not promote equity.

The Bill makes little or no reference to making the material easy to read or to phrasing it in simple language for people with an intellectual disability. The supports mentioned are all couched in terms such as "as far as is practicable" or "the promotion of accessibility". More importantly, most accessibility issues are being left to the development of administrative schemes to be approved within the sector plan.

These are my concerns. The Bill as it stands is flawed and needs radical change. There is all-party support in this House for disability legislation but equality and rights must be part of the process. Services are the engine room for assisting people with disability. This Bill is like a clapped-out engine that has failed its NCT test. We, the legislators, are the mechanics. Let us do something about the situation and bring in a proper disability Bill.

Mr. Cuffe

This Bill represents another false dawn for people in this country with disabilities. The Bill is weak on commitments, lacking in rights and unclear on finances. We had hoped for something better than this commitment, and that this Government would deliver on much more than the previous Bill offered.

The Bill is strong on rhetoric but weak on commitments. There appears to be no obligation on the private sector to make buildings accessible to persons with disabilities and even public sector bodies are given ten years to get their houses in order. It seems clear that the Government is putting matters on the long finger. There is no commitment to budgets with the publication of the Bill.

I rarely look to America for inspiration on these issues but I do in this instance because the Americans with Disabilities Act signed by President Bush senior in 1990 mandated local state and federal governments and programmes to be accessible. It mandated that businesses with more than 15 employees make reasonable accommodation for disabled workers and that public accommodation such as restaurants, stores and shops make reasonable modifications to ensure access for disabled members of the public. It seems curious that the United States some 14 years ago provided more rights than the Irish Government is now attempting to do with the Bill before the House.

For these and many other reasons we cannot accept the Bill in its current form. The definition of disability contained in the Bill will exclude many people who have various types and degrees of disability and who have access and other needs. The Bill is not rights based because it is pending resources, which makes matters very difficult if the Bill's provisions cannot be enforced. Much of the funding allocated to the implementation of the Bill if enacted will go on paying staff appointed to administer and implement the new policy. What does that say to those with disabilities?

The assessment and deciding officers should be independent of all service providers, yet they will be appointed by the health board's chief executive. The word "practicable" appears in many sections of the Bill. This causes grave concern to people with disabilities because it indicates that it may not be practicable for the State to meet their needs.

There are no completely clear timeframes given in the Bill so we do not know how long it will take to have needs met. The situation of long waiting lists may well continue. Looking at the disabled persons' grants, there are many counties whose spokespersons will apologise and say their lists are full. What are people expected to do? Are they expected to move county? This is a slap in the face to persons with disabilities. The Green Party believes that advocates should be available, as of right, for people who need them. The Bill states that advocacy will be resource based. Some disabled people who need an advocate may not, therefore, be able to access a necessary service or deal with the proposed complicated appeals system if resources are not made available.

If the legislation proceeds, a review system must be built into it. We want to return to the legislation after two years to see whether it is working. There is no reference in the legislation at present to such a review. As regards a complaints mechanism, we believe the officers should be independent. The Bill proposes a complicated system but the people who will make the decisions will be severely constrained by resource issues.

Enforcement and remedies should include all levels, up to and including the right to take legal action. However, the Bill gives no access to the courts except on a point of law. Six months ago, Deputy Kirk had the audacity to state, at a gathering of the Disability Federation of Ireland in Croke Park, that there should not be such rights because of the danger that the courts would become clogged up. What does that say to persons with disabilities? The Deputy's remarks were an insult to their intelligence and their rights and to those who work with them.

It is curious that as the economy picks up again, some of the most marginalised people in our society will be further sidelined by this legislation. I do not believe that any other group of persons in society would be treated in the way in which the Bill treats those with disabilities. Article 1 of the United Nations Declaration of Human Rights states that all human beings are born free and equal in dignity and rights. Articles 11, 12 and 13 of the International Covenant on Economic, Social and Cultural Rights state that everyone has the right to an adequate standard of living — including house — to employment, to the highest attainable standards of physical and mental health and to education. It is difficult to believe that Ireland, as a signatory to this convention, has failed its most vulnerable citizens by not ensuring their access to all those rights.

I do not understand why everything in this country is sacrificed on the altar of the national economy. I also do not understand why the marginalised are sacrificed at the altar of not harming the Celtic tiger. It is time we put the marginalised first in society, instead of following the mantra of the former Minister, Deputy McCreevy, that the economy means everything to Ireland. I am seeking from the Minister of State a commitment to rights rather than privileges that are attained upon application.

I am insulted by this legislation. Just because a person has a disability does not mean that he or she eats less, wants less desirable things or uses less than others. The Government must believe such people require less, why else would it provide an allowance for persons with disabilities that is less than one third of the average industrial wage? Why will the Government not address the issue of housing in sufficient detail? Why will it not place an onus on the owners of existing buildings to make them accessible to those with disabilities. Half the restaurants in this city have steps leading up to the front doors. I am sure half of those which do not have such steps also do not have accessible bathrooms. There are libraries within this local authority area which have steps leading up to their front doors and which cannot be accessed. That is not good enough in the 21st century. It is inadequate to state that we will hopefully provide such access within the next ten years. Not insisting that local authorities provide accessibility to public buildings is a slap in the face to those with disabilities.

I am seeking a stronger commitment in the Bill and real, clear and distinctive rights that can be upheld in law should be spelt out. As it stands, the legislation does not provide these things. I cannot understand why the Government would sign an international convention when it is not able to provide these basic requirements and while it continues to deny people rights. Whether it be education, housing or an adequate standard of living or health, two vital ingredients are necessary to ensure that the needs of people with disabilities are met, funding and support. I am not convinced that either is provided for sufficiently in the legislation.

I pay tribute to those who have lobbied us on disability issues. They have briefed us well on their concerns about the legislation. Those concerns will remain, regardless of whether the Bill is passed. I do not believe that this is a new day for Ireland or that we have a commitment which measures up to the treaties and international conventions we have signed. We do not even have legislation in draft form that matches the standards provided in other countries a generation ago. I hope the Minister of State will return to the drawing board and consider whether there should be rights for all or whether they should be earned. I do not believe they should be earned. By definition, they should be available and accessible to all. I hope the Minister of State will reconsider the legislation.

Dr. Devins

I congratulate the Minister of State, Deputy Fahey, who has assumed responsibility for disability. Since he has assumed the position, he has worked tirelessly on behalf of the disabled to bring this legislation to the House. I welcome the opportunity to contribute to the debate on the Disability Bill 2004. The Bill has been a long time in gestation. The Minister of State's predecessor, Deputy O'Dea, met and consulted many groups while formulating the legislation in its early stages.

Disability can present in many shapes and guises. Members will be only too well aware of how it can impact on the lives of their constituents. Before I had the honour of being elected to the Dáil, I worked in general practice. I am aware, from that work, of the terrible effects of disability, intellectual or physical. For many years I worked as a medical officer at Cregg House, Ballincar, County Sligo, which is a residential home for the disabled. It has approximately 200 residents who require long-term care. I have never experienced, in any hospital or home to which I was attached, such a happy atmosphere as that which obtained in Cregg House. I take this opportunity to pay tribute to the staff and residents of that institution who contributed in no small way to the creation of such a unique atmosphere. At this juncture, it is appropriate to refer to the Cloonamahon home in County Sligo which also caters for those with physical and intellectual disabilities.

In recent years there have been welcome moves to assimilate the residents of these homes into the wider community in Sligo through the establishment of homes therein. Between three and six residents live with the appropriate staff in houses specially adapted to their needs. The success of this process has been evidenced by the widespread support it has engendered among the residents, who love living outside residential institutions, and also among members of the wider community who have responded to the needs of disabled people through their great support and enthusiasm.

The Disability Bill 2004 is part of the Government's strategy on national disability. It is important that we should consider it in light of that overall strategy. When the Taoiseach launched it some weeks ago, he clearly outlined the various components of the strategy. In addition to the Bill before us, there are the Comhairle (Amendment) Bill 2004, six outlying sectoral plans and, most important of all, a definite commitment to a multi-annual investment programme for disability support services.

It is important to consider the Disability Bill in the overall context of the disability strategy. The Government's overall strategy is to put in place the most effective combination of policies, legislation and services.

Debate adjourned.