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Dáil Éireann díospóireacht -
Thursday, 25 Oct 2007

Vol. 640 No. 3

Adjournment Debate.

Health Services.

This matter relates to a constituent of mine who had not been able to secure a nursing home place at Hamilton Park Nursing Home, Balrothery, because of the cutbacks which the Government introduced a few months ago with regard to this year's HSE budget. This constituent was very badly affected by the arbitrary cutbacks in health funding. The individual in question suffered a severe stroke and had been recuperating at the Dún Laoghaire National Rehabilitation Hospital, following six months in Beaumont Hospital. After several months of effort by his family to ensure his transfer to a more appropriate treatment centre, they were told that an application to move to Hamilton Park, Balrothery, would have to be submitted again.

I was informed of the matter on 3 October and immediately tried to raise it in this House, on the Order of Business, with the Taoiseach and the Minister for Health and Children and also with Professor Drumm of the HSE. I pay tribute to the family concerned who unfortunately had to use every available media opportunity to highlight the issue. I pay tribute, in particular, to Mr. Joe Duffy who, on his "Liveline" programme, pursued this matter very vigorously and, in this case, successfully.

The family was informed on 17 September that the patient would be transferred to Hamilton Park Nursing Home in Balrothery. However, that date came and went without a decision on the transfer and the patient's rehabilitation treatment was reduced to below three hours per week. Early in October the HSE informed the family that funding for all nursing homes had been withdrawn. The family are grateful to Deputy Cyprian Brady, who took an interest in the matter.

Yesterday the family informed me that my constituent will be moving to Hamilton Park today. Nevertheless, it is appropriate to raise the issue because many other families have had similar problems regarding Hamilton Park, other nursing homes and the National Rehabilitation Hospital. Another constituent in north county Dublin suffered a cerebral abscess and was admitted to Beaumont Hospital last February. This patient was also due to move to Hamilton Park last week but her partner contacted me a few days ago and outlined the great difficulties he and his family are enduring, attempting to care for this young mother who urgently needs a therapeutic programme at the Balrothery facility.

The failure to ensure that the HSE had adequate funding to develop Hamilton Park for the two patients to whom I refer has led to other blockages in the health system. As the Minister will be aware from media reports, at least six patients urgently waiting to be admitted to the National Rehabilitation Hospital in Dún Laoghaire could not be facilitated because home care and nursing home packages were not being made available at locations like Hamilton Park.

My party has studied the pre-budget statement on health and believes that a 3% to 7% increase in expenditure next year may not be sufficient to allow home care and nursing home packages to be provided for patients such as those to whom I have referred. There are many other problems in the health system. I know of HSE staff due to return from career breaks who cannot resume work because of the current crisis. I am anxious to know if the Minister for Finance will introduce a package in December. He must use whatever budgetary system is necessary to ensure that the kinds of facilities required are provided to our constituents.

I am pleased to deal with this issue on behalf of the Minister for Health and Children, Deputy Harney.

The Health Service Executive has informed the Department of Health and Children that the person referred to by the Deputy has transferred today, as the Deputy said, from the National Rehabilitation Hospital to the Hamilton Park Care Facility at Balrothery, Balbriggan.

In the context of its work to provide services within the budget voted by Dáil Éireann for 2007, the Health Service Executive is working closely with the National Rehabilitation Hospital to identify options to allow further discharges to take place as required. The executive is aware of 31 patients who are due for discharge from the hospital before the year ends. The HSE and the hospital are finalising solutions to discharge 13 patients from the hospital to the community. These patients will be moved as soon as arrangements can be made. The HSE and the hospital will continue to work closely together to resolve the cases of the remaining patients whose discharge dates fall between now and the end of the year.

Funding for health services has increased over the past decade, resulting in an associated expansion of a wide range of frontline services and increased activity. This year €15 billion of public money will be spent on health and personal social services. The Minister for Health and Children recently announced in the pre-budget Estimates that €1 billion extra revenue funding will be provided next year for the HSE to deliver public health services, an increase of 7%. This increase for 2008 is a substantial increase by international or any other standards to maintain existing service levels. The Minister for Finance will announce on budget day any service development funding to be provided by the Government.

Most activities this year have exceeded the target levels in the HSE's service plan. Higher activity within budget means higher productivity, which is recognised. However, in some cases staffing and activity levels have been higher than profile and have incurred additional costs over the anticipated level for the time of year. For that reason, the HSE is implementing a plan to come in on budget. I must emphasise the temporary nature of the measures which the HSE has put in place to remain within its budget. It is also important to emphasise that the HSE has a legal responsibility to manage its funding as voted by Dáil Éireann.

The National Rehabilitation Hospital in Dún Laoghaire is a 120-bed hospital which provides treatment and rehabilitation for patients with spinal cord injuries, head injuries, amputation, traumatic and non-traumatic brain injury, strokes, neurological disorders, children's disabilities and spina bifida. It also provides wheelchair and mobility aids assessment, pre-vocational and vocational training programmes involving a wide range of social, personal and work related skills with a view to enhancing opportunities for each individual for further training, employment and educational options. There is also a 12-bed hostel to enable clients from outside the greater Dublin area to access day services in the hospital and vocational training unit. A new hospital is in the planning stage for the National Rehabilitation Hospital and once built will have an additional 100 beds.

Social Welfare Benefits.

This matter has come to my attention recently as rents in the Kildare North constituency have increased by €200 per month. These increases have left recipients of rent supplement in a difficult situation because the HSE has refused to increase supports in line with increases. I realise that neither the HSE nor the Department can be seen to subsidise landlords. However, people in receipt of rent support, based on the guidelines already laid down, have two options. They can either leave their accommodation and sleep in the open air or receive support from family or friends. I have several constituents who are sleeping in the open air. This may work well while the weather is mild but when it becomes less mild, it could lead to dangerous situations for these individuals.

Will the HSE and the Department of Social and Family Affairs identify the increases necessary to ensure those in receipt of rent supplements can continue in their accommodation? While negotiations on such a process cannot leave it open-ended, it should be urgently addressed. I know the Minister for Social and Family Affairs is a caring person and is conscious of these matters. I ask that he address this issue without delay. Every Member will have received calls in recent times regarding this matter.

Ba mhaith liom buíochas a ghabháil leis an Teachta as an cheist thábhachtach seo a ardú. Gabhaim leithscéal mar nach bhfuil an tAire Gnóthaí Sóisialacha agus Teaghlaigh i láthair, ach d'iarr sé orm an freagra seo a thabairt ar a shon.

The purpose of rent supplement is to assist eligible people who are unable to provide for their immediate accommodation needs from their own resources and who do not have accommodation available to them from any other source. Rent supplement is subject to a limit on the amount of rent that an applicant for rent supplement may incur. These rent limits, provided for in regulations, are set at levels that enable the different categories of eligible tenant households to secure and retain basic suitable rented accommodation, having regard to the different rental market conditions that prevail in various parts of the State.

Setting maximum rent limits higher than justified by the open market would have a distorting effect on the rental market, leading to a more general rise in rent levels. This in turn would worsen the affordability of rental accommodationon, with particular negative impact for those tenants on lower incomes. Notwithstanding these limits, under existing arrangements the HSE may in certain circumstances exceed the rent levels as an exceptional measure, for example in cases where the person concerned is entitled to an income disregard and has sufficient income to meet his or her basic needs after paying rent, taking into account the appropriate rate of rent supplement that is otherwise payable in the case; where there are special housing needs related to exceptional circumstances, such as disabled persons in specially adapted accommodation or homeless persons; or where the tenant will be in a position to reassume responsibility for his or her rent within a short period. This discretionary power ensures individuals with particular needs can be accommodated within the scheme and specifically protects against homelessness.

In January 2007 the Department of Social and Family Affairs completed a review of the maximum levels of rent which a person may incur and still be eligible to receive a rent supplement. The purpose of the review process was to ensure the new rent limits applicable from January 2007 reflect realistic market conditions throughout the State. It also was to ensure they would continue to enable the different categories of eligible tenant households to secure and retain basic suitable rented accommodation to meet their respective needs. The existing limits are applicable from January 2007 until 30 June 2008. The review involved a broad consultation process and included consultation with the HSE, the Department of the Environment, Heritage and Local Government, the Private Residential Tenancies Board and voluntary agencies working in this area.

There are over 58,700 rent supplements in payment, of which 23,819 have been awarded since the current rent limits were set in January 2007. There are 2,263 rent supplements in payment in County Kildare, of which 831 were awarded since January 2007. These statistics show the rented accommodation is available within the current rent limits in County Kildare and elsewhere. All limits will be reviewed again next year. Any revision found to be necessary will be implemented from 1 July 2008.

If Deputy Durkan has particular cases in mind, it is recommended that those concerned should approach their local community welfare officer to discuss the circumstances of their case having regard to their particular accommodation needs.

Departmental Investigations.

I wish to raise the results of an European Parliament Petitions Committee on the problem of ill thrift, stunted growth and low milk yields on a farm in north County Kilkenny. The case has come to national prominence and it has repercussions for agriculture.

In 1990, shortly after a local factory changed ownership, Mr. Dan Brennan, who owns a mixed-farming farm in Castlecomer, County Kilkenny, began noticing problems with animals and the environment on his farm. In what veterinary experts refer to as lack of thrive, animal growth was retarded and stunted and milk yields were low. Trees and hedgerows showed shrivelled branches and dead leaves.

In the spring of 1991, Mr. Brennan was unable to sell his animals on account of lack of growth. Despite the absence of sickness among them, and the feeding of supplements such as cobalt, zinc, copper and all the standard vaccinations one would expect, the situation did not improve through the mid-1990s. By 1995, Mr. Brennan noticed that heifers, typically bought in at 360 or 370 kg that should weigh 500 kg six months later had gained a mere 30 or 40 kg in weight. It was thought that water supply was the source of the ill thrift, but a change in the farm's water source yielded no change.

In 2000 the animals were put on 50 acres of rented ground on a nearby farm. There, Mr. Brennan's veterinarians observed the animals began to look completely different. When they were brought back to the sheds on his own farm that winter they began to lose weight again. Laboratory tests done in Kilkenny confirmed this.

In the winter of 2003-04 feeding trials were conducted on the farm. Two sources of silage — one from Mr. Brennan's farm and one external source — were used for the trials on both Mr. Brennan's and an external herd, and yet intermittent weight loss was recorded among the animals using either silage feed. Department officials told Mr. Brennan he had conducted the tests incorrectly. The Department officials subsequently ran tests the following winter. Mr. Brennan's cattle and an external sample were concurrently tested on two separate sites, being fed the exact same feed by the same, independent personnel for four months. During the four months of feeding on his farm weight loss was recorded, but the same did not occur among the animals off site. Despite the implications of these tests — that the weight loss was occurring because of environment rather than feed or herd — the Department failed to act on this. A year later, in 2006, departmental veterinary officers issued a report stating that the source of his animals' problems was disease management by Mr. Brennan.

In October 2006 the Department veterinary officers ceased to conduct tests on Mr. Brennan's farm. A team of veterinarians from UCD then commenced tests. When feeding trials in the winter of 2006-07 were conducted, it was noticed that the animals were gaining weight. The local factory, however, whose emissions fall into the area of Mr. Brennan's farm, was closed during the course of these trials. Two letters from Teagasc in the past two years have stated it does not believe it is the practices on Mr. Brennan's farm which have caused ill thrift and that there is some other cause.

Dr. Robert Milikan, an American veterinarian from the UCD epidemiology unit, has agreed with this statement. Upon Dr. Milikan's recommendation, Mr. Brennan and his family were promised by the Department and by the Minister, Deputy Mary Coughlan, in July and October 2006, that when a downturn in cattle occurred again, post mortems, liver biopsies and digestibility studies would be carried out. A downturn happened in July 2007 and despite twice meeting the Department's deputy chief veterinary officer, none of this work has been carried out. Despite the recent report of the European Parliament Petitions Committee into its investigations into the ill thrift of Mr. Brennan's cattle, which stated that a probable causal link exists between toxic emissions from local industry and ill effects on the livestock, trees and hedgerows on his farm, there has still been no action from the Department. After years of injustice, Mr. Brennan is still getting the cold shoulder.

I should like to know what the Department and the Minister are going to do on the matter. This issue is not only of importance to Irish farming but is of immense interest from a wider European and environmental perspective.

Ba mhaith liom, ar dtús báire, mo bhuíochas a ghabháil do mo comhghleacaí agus mo chara, Deputy White, as an gceist thábhactach seo a ardú, mar thug mé cuairt ar an bhfeirm mé féin tamall ó shin. I therefore appreciate the difficulties being experienced by the farmer and his family.

My Department and other relevant agencies have already invested considerable resources in terms of personnel and laboratory analysis, and continue to do so in an effort to get to the cause of the problem. The animal health problems on the farm have been ongoing for a number of years and relate mainly to ill thrift and stunted growth of cattle on the farm as well as severe milk yield loss in the dairy herd. The farm has been the subject of extensive reviews over the years and is currently the subject of further investigations being carried out by the Centre for Veterinary Epidemiology and Risk Analysis, CVERA, based at UCD and funded by the Department.

It had been suggested that one of the likely causes of the problems being experienced on this farm was possible exposure of animals to fluorine being emitted from a nearby brick factory. For this reason, there has been a high degree of inter-agency involvement and co-operation in the investigations. The agencies involved have included the Environmental Protection Agency, Kilkenny County Council, Teagasc, the South Eastern Health Board and my Department. In 2004, the Department's veterinary laboratory service arranged for a wide-ranging study to be undertaken into the problems on the farm, following which a number of reports were produced in June 2006. These reports documented the range of the investigations, the methodology involved and the results of different aspects.

In broad terms, the reports concluded that while there were undoubtedly animal problems on the farm, the investigations had not established that the environmental impact of emissions from the factory, particularly fluoride, was sufficient to cause significant pollution or the animal health problems on the farm. The farmer involved had certain difficulties with some aspects of one of the reports in particular, and while not disagreeing with its factual and technical aspects, he did not accept its interpretation and emphasis. My officials recently met with him and his private veterinary practitioners to discuss the draft report and it is expected to have the report finalised shortly.

Apart from the foregoing, my Department and others have been involved in a number of other initiatives on this farm. For example, a herd health programme was developed by the farmer's private veterinary practitioners and supported by my Department to deal with respiratory disease in calves and mastitis in cows. The Department also funded treatment for mastitis, a vaccination programme, the provision of calf hutches to segregate the calves from each other and feeding trials. Other areas included developing a grassland management plan, monitoring growth of calves at grass, checking sources of water to the farm, monitoring blood for clinical pathology parameters and specific elements as appropriate, as well as animal disease monitoring back-up.

Following finalisation of these reports in 2006, the Minister, Deputy Coughlan, met a delegation of interests which included the farmer in July 2006 and confirmed that the authorities were more than willing to continue to seek to get to the root of the problems. She also met with the director of the EPA to discuss a report it had produced on the environmental impact of emissions, particularly fluoride, associated with the brick factory. Arising from this, in 2006 the Minister commissioned the CVERA, based at UCD, to conduct a further thorough and comprehensive study. The CVERA study is designed to complement the work done to date and will use some different approaches to investigate the production problems on the farm. This study entails a major sampling and testing programme as well as epidemiological studies that are seeking to establish a pattern in time and space and investigations into the competency of different metabolic pathways. In addition, a comprehensive and detailed soil survey is included in the remit of the study. This CVERA investigation, which commenced in late 2006, is ongoing and has the full support of the farmer.

As referred to by the Deputy, the Petitions Committee of the European Parliament visited Ireland earlier this year and dealt with a complaint from the farmer in question. To my knowledge, this committee does not have any particular scientific expertise but its report nevertheless contained certain important findings. We do not necessarily accept that many of these are supported by the findings to date from the studies by the various agencies. In particular we reject any assertion that we have been remiss in our investigations, given their extensive nature, as I have outlined. During the visit, the Department's deputy chief veterinary officer and the relevant agencies met with the delegation and briefed it on developments to date with regard to investigations both current and past, but these are not fully reflected in the committee's report.

I would emphasise that both I and my Department as well as the other agencies involved are determined to continue to seek to establish the underlying cause of the problems on this farm. This can best be done by further scientific investigations. In my view, the CVERA investigation currently being undertaken is both scientific and robust, as well as being thorough and comprehensive in the areas being examined. It would be inappropriate to speculate on its outcome until such time as the wide range of tests has been completed, the results collated and analysed and any firm scientific conclusions drawn. I am hopeful, however, that when this report is finalised in the next few months it will shed further light on the issues involved.

Financial Services Regulation.

I am not here to comment on any particular case before the courts as regards solicitors' undertakings and what essentially are allegations of fraud, particularly by solicitors who are namesakes of mine. What is being heard on a daily basis is devastating for the solicitors' profession and public confidence. I have often said that the genuine and rare mistakes of solicitors could be accepted provided the solicitor concerned was honest and confidential. After all, that is why there is professional indemnity insurance. When honesty is in doubt, however, the solicitor has no function in the community. The vast majority of solicitors provide a fantastic service to clients. Often one finds that successive generations of a family will have used the services of successive generations of a family solicitor. The connections are both personal and professional.

Turning to the issue in hand, the system of solicitors' undertakings has to be reviewed in terms of how it currently operates. As matters stand, the banks presumably are worried about it and I trust the Law Society has concerns too. The system of solicitors' undertakings for mortgage lending is a great but relatively recent innovation, as it eliminates the need for a mortgaging bank to have its solicitor acting for it when a borrower is obtaining mortgage facilities in respective of residential lending. Instead, the borrower's solicitor solemnly and personally undertakes to do everything necessary to protect the bank's interest in the mortgage transaction, particularly as regards registering the borrower as the owner of the property and the bank as having the first legal charge on it. The upshot for the borrower was that the cost of the bank's solicitor were eliminated, thereby reducing his or her liability substantially. Residential property transactions could proceed much more smoothly. It is often forgotten that undertakings are personal to solicitors and the solicitor is personally liable for everything he or she undertakes to the bank. This is a significant burden on solicitors, particularly given rising property values. However, the system of solicitors' undertakings was never intended to apply to commercial property transactions.

From my experience as a solicitor and media reports, I understand the system of undertakings thrives in the commercial property lending sector. For what might be massive transactions, many banks accept solicitors' undertakings to stamp and register the interests of borrower and bank without employing their own legal team. The solicitor in this case has no solicitor-client duty to the bank. This is often misunderstood and has implications in the current crisis because it means banks should have no recourse to the compensation fund of the Law Society which is for clients only. I hope this is the view of the society because banks should not be compensated for reckless lending.

In many cases, the process of undertaking in respect of a commercial mortgage is extraordinarily simple. In my direct experience, a borrower could obtain approval for millions of euro in respect of a commercial property and the money would be issued immediately on the bank's receipt from the solicitor of a simple, one-page undertaking signed by the borrower's solicitor. This would be an undertaking to stamp and register the deeds to the mortgaged property. However, the system is totally dependent on the borrower's solicitor. If there is a mistake, the bank will hope there is adequate professional indemnity cover. This may often not be the case in commercial property transactions in the light of their generally high value, despite recent welcome increases in cover required by solicitors. If there is dishonesty, as we have seen, all bets are off.

Of the major banks of which I am aware, one branch attempted to withdraw the facility of solicitors' undertakings in commercial transactions. However, when the bank's customers started to complain about the added costs of the bank's solicitor which they are required to bear, the branch simply dropped the requirement and returned to relying on the borrowers' solicitors' undertakings.

What has really come to light in the media recently is the scandal of solicitors giving undertakings regarding their own borrowings on properties they are buying themselves. It is completely crazy for banks to be lending money on the undertakings of their own borrowers to register the banks' interests. In this case, the banks have only themselves to blame but the implications are very wide.

I know of a minor case in which a solicitor, when buying his family home, asked the bank specifically whether it would be acceptable to give his own undertaking on his borrowings. The bank stated this would be fine as long as he asked another solicitor to witness his signature on the mortgage deed. Happily, I was in the position to oblige my colleague but we were both aware of the absurdity of the bank's position.

From my experience, generally as a country solicitor, I have found that worry about title deeds keeps a lot of clients awake at night. Fears are generally unjustified and often based on conjecture and worry instilled by third parties with a lack of knowledge. However, there are many clients of certain solicitors awake at night owing to justifiable fears about the title deeds to their property and their ownership of it for which they paid and are still paying.

The vast majority of solicitors, 99.9%, are devastated by recent events, but we must learn from experience. I call on the Minister for Justice, Equality and Law Reform to initiate discussions with the Law Society to review the system of undertakings in lending transactions and particularly to bring to an end the system of undertakings as used in commercial property lending transactions which was never intended to be used in these cases and which, ultimately, is the root cause of the current crisis.

I congratulate Deputy Thomas Byrne on becoming a father recently and wish him, his wife and new daughter Sinéad every success, health and happiness.

Ba mhaith liom leithscéal a ghabháil mar ní féidir leis an Aire Dlí agus Cirt, Comhionannais agus Athchóirithe Dlí bheith i láthair. D'iarr sé orm an freagra seo a thabhairt don Teachta ar a shon.

I stress, as did Deputy Byrne, that I cannot comment on individual cases, especially because the issues raised are linked to a matter before the courts. As the Deputy is no doubt well aware, undertakings are a vital component of conveyancing practice and, in preparing for the completion of a conveyance, it is common for solicitors to give undertakings in relation to certain aspects of the process.

Undertakings may take different forms, depending on who is making them and the subject of the undertaking. For example, a vendor's solicitor may, where a property is being sold subject to a mortgage and the mortgage is to be discharged from the proceeds of the sale, give an undertaking to hold the title deeds on trust or on behalf of the mortgagee and to account to the mortgagee for the amount required to discharge the mortgage on completion of the sale. A purchasers' solicitor will usually give an undertaking to a financial institution to the effect that he or she will ensure the purchaser has a good marketable title to the property, that the documents are executed and that all the title deeds are stamped, registered and lodged with the institution. In addition, the solicitor will generally, pending lodgement of the title deeds with the bank or building society, undertake to hold the deeds in trust for the lending institution.

It is important to understand what in particular constitutes a solicitor's undertaking as distinct from any other type of undertaking. Essentially, the undertaking by a solicitor is a promise or guarantee given by the solicitor in his or her professional capacity to do or undertake to do certain things. As the undertaking is given in the solicitor's professional capacity, it must be honoured by the solicitor. Where a solicitor fails to honour an undertaking, it is considered to be professional misconduct and, as a result, he or she is rendered liable to the Law Society's disciplinary procedures and investigation by the solicitors disciplinary tribunal which is independent of the society. It is appointed by the President of the High Court and includes lay members.

The tribunal has limited judicial powers and its primary function is to establish, by evidence and documents, the facts of a complaint and decide whether misconduct is proved. Where there is a finding of misconduct, the tribunal can impose a sanction on the solicitor which can include a direction to pay restitution to an aggrieved party, or it may refer its finding and recommendation to the President of the High Court who will ultimately decide on the nature of the sanction to be imposed on the solicitor. This can include the striking of the solicitor off the roll. The Minister for Justice, Equality and Law Reform is further strengthening these powers in the Civil Law (Miscellaneous Provisions) Bill 2006 by providing for the better enforcement of orders made by the tribunal.

It should also be noted that, as an officer of the court, the solicitor is subject to the jurisdiction of the court and may be compelled by it to implement the undertaking. Furthermore, it is possible, depending on the facts of the case and the wording of the undertaking, that the court may enforce the undertaking against the solicitor personally.

Given the nature of an undertaking, it is imperative that great care is exercised by a solicitor where the question of giving an undertaking is concerned. The Law Society has issued guidelines to its practitioner members on the giving of undertakings. A number of principles relating to undertakings have been outlined by the society regarding issues such as obtaining an irrevocable authority from a client to give such an undertaking and the inadvisability of giving personal undertakings, unless the solicitor is in a position to honour the undertaking.

The Law Society has also agreed standard forms of undertakings with the Irish Banking Federation to cover a number of issues such as the lending of title documents to a solicitor for inspection only and return to the institution. In so far as the system of banking and making loans available to clients is concerned, the Deputy will appreciate that the Minister for Justice, Equality and Law Reform has no function.

The Financial Regulator is responsible for the prudential supervision of Irish-licensed financial institutions and independent in matters of day-to-day supervision. The regulator has consistently conveyed to lending institutions that mortgage lending policies and practices should be prudent and responsible. The standards accord with best regulatory practice internationally. According to the IMF, our regulatory regime is up to the best international standards. It is in everybody's interests that best practice is followed in the areas referred to by the Deputy. In so far as there are any matters to be reviewed or issues addressed, he can be assured that the responsible Ministers will do so.

The Dáil adjourned at 5.20 p.m. until 2.30 p.m. on Wednesday, 31 October 2007.
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