Dáil Éireann díospóireacht -
Wednesday, 15 Dec 2004

Vol. 595 No. 3

Leaders’ Questions.

Mr. Kenny

Yesterday, the Tánaiste announced that the Government is introducing emergency legislation to put in place a sound legal basis for charging elderly patients in public care. I want to give credit to the Tánaiste for moving on this matter in the wake of legal advice given to her after Deputy Perry first raised the matter. I have serious reservations about passing complex legislation in one day at the end of a Dáil term. It is because of Government incompetency in the first instance that this matter has arisen.

I want to refer to the specific issue of the ex gratia payment to the elderly people involved. My party was pilloried for 50 years about a decision made by the late Ernest Blythe in regard to old age pensions. This is a very sensitive matter for these people. Who are they? They are not the people who attend at tents at the Galway races or go on multiple holidays each year. They are the sick, the elderly, the lame, the blind, stroke victims, Alzheimer’s patients in their 70s, 80s and 90s. Because of the incompetence of legislation introduced by the then Minister, Deputy Martin, the State took illegally payments and contributions from these people. It is now expected that these people, many of whom have no next of kin or are unable to follow the events of the world as we might wish, should apply to the Department of Health and Children, which rushed through legislation in 2001 and took payments from these people, for an ex gratia payment.

Before getting into the analysis of the legislation and the complex issues contained therein, the Taoiseach and Tánaiste should examine the matter of a requirement on the elderly to apply for an ex gratia payment, whatever order it may be. The requirement should be waived because the Department has all the records of and from whom it took these payments. This is a very sensitive matter for thousands of elderly people. I ask for this commitment before the legislation is published.

The Taoiseach

On the two points raised by Deputy Kenny, the Government wants to bring clarity, certainty and speed to the issue of the repayments on nursing home charges. The Deputy raised the issue here on a number of occasions during this session. Very early on, the Tánaiste said the matter would be examined comprehensively by the Attorney General, who did this. I reported that fact when the Deputy raised the issue with me on several occasions. He also used outside senior counsel opinion and provided us with preliminary advice on 5 November and with his full advice on 8 December. The Tánaiste and the Cabinet made a decision to move on the matter straight away because it is important to deal with the matter.

I will not get into an argument on the legislation, but it is clear from reading the file that the issue dates to a decision made in 1976 arising from the McInerney Supreme Court decision, which was carried forward since then within the Department. The scheme dates back to 1954, as amended in 1965. It dates back over a 50 year period, which is on the record. The question of overall eligibility has been examined in the Department over the past two or three years.

On the second issue raised by Deputy Kenny regarding the €2,000 to be refunded to these people, we are not talking about elderly people, but about approximately 20,000 people in institutions, psychiatric hospitals, welfare homes, county homes, district hospitals and community nursing units. I assure the Deputy that, where possible, these people will be identified. Obviously many of them still remain in this position. It is easy to deal with the issue where the records are clear. There will be an advertising campaign and a full effort to identify these people and pay them the ex gratia payment.

Mr. Allen

Will the Taoiseach repay them?

The Taoiseach

It is an ex gratia payment based on a gesture of goodwill.

Mr. Allen

The people were diddled.

(Interruptions).

An Ceann Comhairle

Allow the Taoiseach without interruption.

The Taoiseach

I do not think the Deputy should say that because it is essential that any charges imposed on people have a sound legal basis. It is not an argument about whether people should pay the charges. This payment scheme exists for 50 years under the 1954 Act. It is important for the State to ensure that any charges or taxes imposed on people are legal whether in regard to the health service or any other service. The enactment of the legislation will not change the fact that the payment has existed for half a century.

Mr. Kenny

I have given credit to the Tánaiste for taking action on the basis of the legal advice offered to her. A patient in a public bed for less than six months can get only a proportion of an ex gratia payment. I hope the Tánaiste has not finalised the figure of €2,000. She should not subject the elderly to a bureaucratic regime such as was applied to the drugs refund scheme, or to any other scheme whereby the elderly are forced to apply for a payment which they will now see has been taken from them illegally. If the Department of Health and Children knows those people from whom it has taken the contributions in the first place, then based on those conditions it should be able to make the repayments.

I am concerned that this legislation is being rushed through because it deals with elements of retrospection and of capping the right of people to take a court case. There is no clarity about repayment to estates of people who have unfortunately passed on, and the next of kin may feel that the money was taken from the estate. The Taoiseach is aware that this matter has split families all over the country. Will the Taoiseach decide that those who will get a repayment of an ex gratia nature, or whatever it is, will not have to go through the tortuous process of having to apply to the Department of Health and Children? Let the cheques come through the ward door to those people who will feel very aggrieved that these payments were taken from them illegally in the first instance.

The Taoiseach

I accept that point fully though it is not the Department of Health and Children which holds the records but the institutes involved. For those in long-term care, those people who are readily identifiable in nursing units and psychiatric units and publicly contracted beds in private nursing homes, district hospitals or county homes, there will be no problem. We will not subject them to any regime but will simply make the ex gratia payments.

I ask Deputy Kenny to accept that in some cases, where people have left or moved away, an advertising campaign will be necessary to identify them, but those who are readily identifiable will not be put through any process and we will give them the ex gratia payments as quickly and efficiently as possible. We will have to do otherwise for some other people, including people who have left the various institutes who may wish to apply, but we will move on the system as quickly as possible.

Mr. Rabbitte

The Taoiseach says he will rush all Stages of legislation on this matter through tomorrow in order to bring speed and clarity to the issue. Did the chief executive of one of the health boards advise the Department of Health and Children in early 2003 that according to his advice there was no legal basis for these charges? Since the Taoiseach has been aware of the issue from early 2003, there has been no sign of wanting to rush it through with great speed and clarity.

How can the Taoiseach justify his Government requiring the banks, for example, when they are guilty of overcharging, to make full restitution to the clients overcharged, and then apply a different rule on this issue? Why are the people subjected to this overcharging not entitled to the same treatment?

The Bill, which I received an hour ago, says for example that "subject to subsection (6) it is hereby declared that the imposition and payment of a relevant charge is and always has been lawful". In other words it seeks to deem something to be legal which was illegal. The Taoiseach must say whether he will make the various advices of the Attorney General in respect of this matter available to the Opposition spokespersons. It is difficult to understand how 20,000 people who have been improperly and illegally charged, without any statutory authority, are now supposed to settle for up to €2,000, about the equivalent of 16 weeks of overcharging, no matter how long the overcharging has gone on. Given the complexity of these issues and the blatant lack of statutory authority for what the Department has been doing over all those years, I cannot see how the Tánaiste can rush the legislation through this House tomorrow. I ask the Taoiseach to provide the Attorney General's legal advice to the Opposition and provide the House with time to consider these matters properly.

The Taoiseach

We want to bring clarity, certainty and speed to these issues. We want clarity about the law in the past, the present and the future, as well as about the repayments being provided and the charges that will continue. We want to deal speedily with the repayments to people and to maintain the incomes of health boards and the new Health Service Executive. The payments will be made on an ex gratia basis as a matter of goodwill.

Deputy Rabbitte asked if the matter was raised by the health boards. It was, and the Department was working on a scheme of eligibility. It has been looking at the entire legal and policy framework of eligibility for health services because different eligibility criteria have been operating for many years since the Health Act 1970. The criteria are not equal across the health boards. This issue has been raised many times and certainly since the 1996 Act whereby health boards were made responsible for balancing their budgets. That issue was raised many times by Deputies in this House. The health boards must balance their budgets and make ends meet.

The issue before us did not arise from the Health Act 1996. For 50 years since the 1954 regulations, people in long-term care have paid towards the cost of shelter and maintenance. That was provided for under the 1954 regulations. They were amended in 1965, under the Health Care Act 1970 and under the 1976 regulations. People accept it as reasonable and fair that there should be a contribution towards living costs, that is, non-medical expenses of shelter and maintenance. That has been the position for half a century. When people receive State pensions to meet living expenses, those pensions help to take care of them if they enter long-term care. That has been the basis of this. All Governments have implemented this policy. They provided for the new charges from time to time, and from the 1976 regulations onwards the guidelines were given out to the health boards and followed by them. In recent weeks the Attorney General stated that he believed this requires primary legislation and the Government is now providing that, as it must do following receipt of that advice.

Mr. Rabbitte

I know of no evidence that the Department was taking the action mentioned by the Taoiseach from the time it was advised that there was no legal basis for its actions in this area. It is reasonable to ask if the Minister would even be responding to the matter now if Deputy Perry had not raised the matter in the House. Frankly, I doubt it.

The Taoiseach should note that retrospective changes in procedures are one thing while retrospective imposition of a liability is entirely different. That is in effect what is being proposed. If, for example, the State is dealing with a citizen who does not pay his or her taxes, it levies the full taxes with penalties and interest. When the shoe is on the other foot, however, the Taoiseach says that an illegal charge can be made which can be made legal by retrospective legislation. I instanced the example of the banks. How can a different set of rules apply to citizens dealing with the State as distinct from those dealing with the banks?

An Ceann Comhairle

The Deputy's minute has concluded.

Mr. Rabbitte

I accept that, but many people are running out of minutes who are aged, infirm and perhaps not in possession of their full faculties. Frankly, they have been cheated, and offering them a sop at this time in this fashion and asking Members to nod it though the House is not acceptable. There are myriad examples of the courts striking down bad law rushed through these Houses and the Tánaiste should not now be adding to that.

Deputies

Hear, hear.

The Taoiseach

I cannot argue one way or another about the courts' rights in this matter. When one reads the 1976 regulations with the hindsight of the cold light of almost 30 years, one might conclude that perhaps they should not have been implemented as they were.

A Deputy

Pay them back——

The Taoiseach

I do not believe that is the issue, as unpopular as it might be to say so. I believe people in general accept it is reasonable and fair that there should be a contribution towards living costs, that is, expenses for shelter and maintenance. That has been the position for 50 years.

Mr. Stagg

They are paying their full pensions.

The Taoiseach

They are not paying their full pensions.

Mr. Stagg

They get it back as tobacco money——

An Ceann Comhairle

The Taoiseach, without interruption, please.

The Taoiseach

If I can make the point, it is not the same as people not paying their taxes.

Mr. Stagg

——if they are lucky.

The Taoiseach

I am trying to answer the Labour Party, but Deputy Stagg will not allow me. The people in this case are within the various categories I have mentioned, in welfare homes, district hospitals and long-term care. When they had left their homes they received care, maintenance and shelter in various organisations. That is what the payments were for. They were out of their homes. They are paid a pension for their care when they are living at home and then they are paid it when they are in these organisations. That is the purpose of the payments. It is not a case of taking something for nothing. That is the principle that has operated for 50 years. We were told very recently, a point made earlier by Deputy Kenny, that we did not have the legal basis——

Ms McManus

The Government was told that two years ago.

The Taoiseach

I now have to answer three people in the Labour Party, but the point is work had already begun in the Department on a more general review of the entire legal and policy framework around eligibility for health service. When the issue came up as regards the health board, the Department believed it still had grounds for continuing with the system, but knew there were different criteria on this among various health boards. In good faith it continued to operate the system while the review was going on. As soon as the matter was highlighted the Tánaiste correctly stated that the Government had to deal with it and that is why we are asking for the co-operation of the Opposition to pass this Bill this week.

Mr. Sargent

I welcome the Taoiseach agreeing to investigate the hiring activities of a PR consultant by Deputy Cullen, the former Minister for the Environment, Heritage and Local Government, dealing with approximately €300,000 as well as eight foreign trips. Today he needs to investigate the spending of €800 million, also under Deputy Cullen's watch as current Minister for Transport, relating to the upgrading of the M50. That is a cost which appears to be escalating, even as we speak. According to the environmental impact study from the NRA the upgrade will result in the road being congested from the time it opens, which calls into question how public money is being spent. I remind the House that the genesis of this particular saga, starting on 16 July 2003, commenced with the former Minister for Transport, Deputy Brennan, stating that the M50 upgrade was not an immediate prospect. Then there was the embarrassment of the Red Cow roundabout going up on stilts, quickly followed on 21 October by the Joint Committee on Transport hearing from what is often termed "the Fianna Fáil NRA organisation" citing €316 million as the cost of an upgrade if it was to proceed. That escalated on 10 February 2004, with the same organisation citing €590 million as the cost of the work. Now, at the oral hearing which is proceeding today as we speak, there is an indication the cost will be €807 million.

There is a clear need to get a firm grip on the escalating cost of over-runs before any construction commences. We are dealing here with the oral hearing. Has the Taoiseach read about Mr. Tim Corcoran, the M50 project co-ordinator telling my colleague, Deputy Eamon Ryan, the Green Party spokesman on transport, that the motorway's upgrade depends on the metro going ahead as well as other public transport being in place, as in the Dublin Transportation Office's "Platform for Change" plan? Where then stands the Government as regards the decision on the metro, which seems to be in abeyance? What about the pleas of county managers such as Fingal's demanding a decision on the metro this January before a proper development plan can be made by the local authority which relates to the administrative area? Will the Taoiseach inquire into this escalating cost and will he make a decision on the metro so there is some comprehensive planning on transport?

The Taoiseach

These questions cover the entire public transport issue——

Mr. Sargent

They are about cost.

The Taoiseach

——and about cost. The National Development Plan 2000-2006 is investing approximately €2.8 billion in public transport. I know the Deputy meant to mention the other aspects, but ran out of time. Perhaps I will take up those. The Heuston station project was completed at the end of last year.

(Interruptions).

An Ceann Comhairle

The Taoiseach, without interruption, please.

The Taoiseach

There are 76 new rail cars coming into service, a capacity increase on rail routes, such as the Dundalk-Drogheda, the Arklow route, the Maynooth——

Mr. Cuffe

What about the M50?

Mr. Eamon Ryan

Public transport.

Mr. Boyle

That is not the question.

An Ceann Comhairle

Deputy Sargent is the only leader of the Green Party and as such, the only Member entitled to ask a supplementary question, when he is called, of course.

Mr. Allen

The Taoiseach should tell the House about Cork station.

Mr. Cuffe

Answer the question.

An Ceann Comhairle

The Deputy is not the leader of the Green Party.

Mr. Cuffe

The question was about the M50.

An Ceann Comhairle

The Taoiseach, without interruption.

The Taoiseach

The answer as regards the M50 is easy. As the Deputy knows there is a hearing regarding the M50 and we are awaiting the outcome.

Mr. Howlin

The cost is going up.

The Taoiseach

We must first await the conclusion of the hearing. I know Deputy Sargent is against all roads.

Mr. Sargent

I am not against all roads. I am against improper costs.

The Taoiseach

The Deputy is against the building of all roads.

Mr. Boyle

The Taoiseach is against all metros.

The Taoiseach

He has asked me about the N3, which is——

Mr. Sargent

I did not ask about the N3.

The Taoiseach

He did. He mentioned that, too.

Mr. Sargent

Will the Taoiseach answer the question?

Mr. Boyle

What about the metro?

The Taoiseach

The Minister will make a decision on the metro in the new year.

Mr. Sargent

Will it be in January?

The Taoiseach

What other roads does the Deputy wish to hear about?

Mr. Eamon Ryan

The M50.

Mr. Sargent

Will the Taoiseach inquire into the cost over-run?

(Interruptions).

An Ceann Comhairle

I will request Members of the Green Party to allow their leader, only, to be involved in Question Time, and only when he is called by the Chair.

The Taoiseach

I am trying to answer the questions one by one for the Deputy as he is asking them. We have also been spending €600 million over the last number of years on rail safety. I am sure the Deputy has noticed Luas is now up and running.

(Interruptions).

The Taoiseach

We have also spent an enormous amount on new buses as well and the Balbriggan bypass, which is in the Deputy's constituency and is enormously successful. The remainder of the road on which he goes home every evening has also been built since he came into the House——

Mr. N. Dempsey

On a bicycle.

Mr. Cuffe

There are very few bicycle lanes.

The Taoiseach

——so I hope he has a happy Christmas.

Mr. Sargent

I thought this was to be a question and answer session. The fact the Ceann Comhairle has no control over the answer is being abused.

An Ceann Comhairle

The Chair will not condone interruptions.

Mr. Sargent

The Ceann Comhairle should take seriously the fact that he is being insulted in that answers are not being given when questions are asked.

Mr. N. Dempsey

Is that a question?

Mr. Sargent

Once again, will the Taoiseach say whether he is in any way concerned that the NRA comes into a committee with a price tag of €316 million to win political support for a project and as soon as that support is confirmed, the price creeps up and is fast approaching €1 billion?

Is that not of any concern to the Government which is supposed to be in charge of public funding when there are so many other needs that require spending? Will the Taoiseach inquire into that? Will he take decisive action on transport planning rather than just rattle off a list of solitary projects that hang together as some sort of Christmas shopping list?

An Ceann Comhairle

The Deputy's minute has concluded.

Mr. Sargent

Will he decommission the NRA and try to re-integrate it into normal democratic society? Will he establish a national transport authority, put the RPA and the NRA together and let us have cohesive and co-ordinated transport planning?

Mr. Cullen

How many questions is that?

Mr. Sargent

At the moment, the NRA is social welfare for road engineers.

A Deputy

Hear, hear.

Mr. Cullen

And for archaeologists.

The Taoiseach

The NRA was set up in the first place so that we could build roads on an independent basis and so that it would not be just the Minister and his Department building them.

Mr. Sargent

Yes, but for roads only.

The Taoiseach

Then we had to deal with the Department of Transport. Early guesstimates of road plans are just that. There are no budget figures until they go out to tender or until full designs of the location of the road are carried out. The Deputy is asking me why the figures for the NRA are escalating, yet he stated two weeks ago that he was completely against the position of the roads. How can the NRA know the cost of roads when we cannot get a fixed position on it?

Mr. M. Higgins

It will not be running advertisements about it at any rate.

An Ceann Comhairle

Allow the Taoiseach without interruption.

The Taoiseach

When the NRA knows where the road is and what size it is——

Mr. Cuffe

Does the NRA know where the M50 is?

The Taoiseach

If this House keeps complaining about it——

(Interruptions).

The Taoiseach

As I understand it, the Clonee-Kells project comprises the construction of 49 km of motorway, of over 14 km of single carriageway and has an estimated cost of around €820 million in January 2004 prices. It is to be implemented as a toll-based PPP project.

Mr. Eamon Ryan

This is not the answer.

Mr. Sargent

This has nothing to with the question.

An Ceann Comhairle

There is only one leader in each party. The Deputies should leave the questions to their leaders.

Mr. McDowell

There should be no motorways near Stonehenge.

The Taoiseach

There is no full scheme yet from the NRA on what will happen with the M50. It has not given full costs on it.

Mr. Boyle

It will cost even more.

The Taoiseach

There is a hearing on it with An Bord Pleanála. Until that is decided and until the NRA knows it has full planning permission, full engineering costs will not be decided. That is how it happens.

Mr. Sargent

It will be over €1 billion.

The Taoiseach

The Deputy wants hearings and investigations, then he wants costs and estimates.

Mr. Boyle

How wrong can the NRA be?

The Taoiseach

Let us go through the process. The process on the M50 is that An Bord Pleanála, which is independent, will make its decision. I know that if it makes a positive decision, the Deputy will claim it was not a good decision and his party will be off to the courts. The Deputy and his party should be honest and say they are opposed to it.