Dáil Éireann díospóireacht -
Tuesday, 31 Jan 2023

Vol. 1032 No. 4

Ceisteanna ó Cheannairí - Leaders' Questions

Deputy Mary Lou McDonald

For more than 30 years, the State and successive governments have ripped off hundreds and thousands of elderly citizens and their families by unlawfully charging them for nursing home care. Despite consistent, repeated legal advice that those charges were illegal, the Government continued to force vulnerable people to pay up. This created real financial hardship and pushed many into poverty as they struggled to afford the charges.

At the weekend, we discovered in the Mail on Sunday that successive governments to this very day operate a secret, calculated legal strategy to stop those who are illegally charged from getting their money back. That was last night confirmed by a Government spokesperson. Instead of the State and the Government owning up to this horrendous treatment of elderly citizens, successive governments have pursued a heartless legal and political strategy, one designed by governments to draw out cases they knew they could not win, to exhaust people's ability to fund their legal challenges and then to settle for significantly reduced awards, all the while keeping things hush-hush. Governments did this knowing it would hit the least well-off families the hardest. We are talking about people forced to work beyond retirement to pay for their parents' nursing home fees. We are talking about pensioners left with a weekly pittance on which to live after paying the charges for loved ones' care. We are talking about families fearing they would go without food, clothes and the basic necessities after forking out these fees. Life savings and pensions have been wiped out, homes sold and elderly people pushed to the breadline, all in a desperate scramble to pay charges that were illegal and the Government knew to be illegal. Then there is the biggest scandal of all - a carefully designed, reviewed plan to prevent these people from getting their money back. That is the reality of this scandal, yet government after government persisted.

The Taoiseach has claimed this is complex. There is nothing complex about the Government ripping off elderly people. There is nothing complex about devising a legal and political strategy to cover your tracks. The truth is that this heartless strategy has been agreed and renewed by every Government and Minister for Health, including the Taoiseach, up to the present day.

Yesterday, the Taoiseach went on the radio. He claimed he was never party to devising or agreeing this legal strategy and tried to distance himself from it, but that is not true. A memo from 5 May 2016, also published, states clearly that the strategy was agreed and overseen by the Minister, which was the current Taoiseach. Is that not the case? Not alone did he know about it, but his colleagues, the Minister, Deputy Harris, the Minister, Deputy McEntee, and the now Tánaiste, Deputy Micheál Martin, knew about it. Let us not play games.

Dúirt an Taoiseach nár aontaigh sé leis an straitéis seo. É sin ráite, is léir gur lean gach Aire Sláinte, le blianta beaga anuas, an Teachta Varadkar san áireamh, leis an straitéis seo chun bac a chur ar na daoine sin a gcuid airgid a fháil ar ais.

Does the Taoiseach still claim he knew nothing of this strategy? Does he still claim that colleagues in government knew nothing of it? It is clear to me that all documentation and correspondence relating to this secret legal strategy must now be published. Will the Taoiseach commit to that?

The Taoiseach

This is an historic issue that dates back to the 1970s. I do not know the full facts of it and I doubt that anyone else does. The Minister for Health has sought advice from the Attorney General and a detailed written briefing from his officials. The Attorney General is also preparing a report for Cabinet for next Tuesday, which we will publish thereafter. Until such a time as we receive those detailed written briefings, there is a limited amount we can say on the matter because we need to establish the facts, although the Deputy seems to know them all already. Once the facts have been established this will be subject to statements in the House and it would also be appropriate for Department of Health officials to make a presentation to the Oireachtas Joint Committee on Health. It has been confirmed that the policy and legal approach predated July 2011 and has been followed since then. Successive Attorneys General and Ministers in multiple Governments, and senior officials in the Department of Health, would have considered the matter and it would appear that they advised in a consistent manner on the issue.

This matter has been grossly misrepresented, including by the Deputy just now in a very irresponsible way. The Deputy's claim that people in private nursing homes were illegally charged is not correct and her claim that this was confirmed by a Government spokesperson last night was just made up. The strategy was to defend the cases relating to private nursing homes on several grounds, in particular that medical card holders did not have an entitlement to free private nursing home care. It was never the policy of the Government nor the intention of the Oireachtas to create such an entitlement. Even today people with medical cards, for one reason or another, either choose or are forced to avail of private healthcare and social care; they do not get a refund, not even now. A limited number of individual cases were settled over the course of ten years, where there were complicating factors. No case ever proceeded to a hearing and if it had, the State would have defended its position and had bona fide defences prepared.

In the case of public nursing home charges, a scheme was put in place that was widely publicised and €485 million was paid to former residents and their families. This sum was considerably less than the estimate of €5 billion put on the potential liability in 2011 by the Department of Health. It was made clear at the time that this would not extend to people who were in private nursing homes. I want to reassure the House that this is not a current issue that impacts any current nursing home residents or any residents in recent years. Since 2009 the nursing home support scheme, the fair deal, has provided a legal basis for individuals to make contributions towards their public or private nursing home costs.

On my role, in 2011 I was Minister for Transport, Tourism and Sport. I was Minister for Health from the summer of 2014 to the summer of 2016, which was six to eight years ago. I must have been briefed on it. The Ministers who went before and after me were briefed on it so I must have been as well but I cannot tell the Deputy when, by whom, in what depth or detail or whether it was written or verbal. Until I have access to documents from that period I cannot answer that question definitively and I do not have any access to documents from that period, but I have sought them. What I can say is that the policy and strategy was devised and agreed prior to my becoming Minister for Health. I do not know if I was specifically asked to sign off on it being continued but if I had been asked I would have. This was a sound policy approach and a legitimate legal strategy by the Government at the time, by previous Governments and by Governments since. All Ministers, from 2005 onwards, at all times acted in good faith, in the public interest, in accordance with official advice and in accordance with legal advice from the Attorney General, and that is exactly how they should act.

Deputy Mary Lou McDonald

In fact the Taoiseach acted in bad faith, as did his colleagues, his predecessors and, it seems, his successors. The Taoiseach has confirmed to the House that he was wrong yesterday, that he knew about this strategy and that he had been briefed.

Can he confirm that other members of the Government - the Ministers, Deputies Simon Harris and Helen McEntee, and the Tánaiste, Deputy Micheál Martin - were similarly aware of this strategy and were briefed?

Will the Taoiseach also respond to my other question on the publication of all of the documentation surrounding these issues? These documents need to be published as a matter of urgency and publicly scrutinised.

On the issue of who was briefed, were the Ministers, Deputies Harris and McEntee, and the Tánaiste, Deputy Micheál Martin, briefed? Was anybody else briefed? Who did the initial memorandum go to in 2011? The Taoiseach stated yesterday that he believed it was to four people. Can he identify who they were and can he confirm that all documentation will, in fact, be published?

The Taoiseach

I cannot confirm who was or was not briefed over that period. I am sure individuals will do that as they can, based on their recollections.

In relation to documents, we are assembling those documents now in the Attorney General's office and the Department of Health. I have not seen them. I have seen one or two but certainly not all of them. When we have assembled them all we will put any that we can into the public domain. That will be the right thing to do. We will not do it in a drip-drip fashion, which is what is happening in the newspapers at the moment. In my view, that is creating a false impression.

The allegation here is very clear. It is that four or five Governments, four or five Attorneys General, any number of Ministers and former Ministers, some of whom are now in the Government and some in the Opposition, and dozens of officials all conspired to deny people refunds to which they were entitled. That is as far-fetched as it sounds. It is not what happened.

Deputy Róisín Shortall

I welcome the fact that the Taoiseach has indicated that the report to Cabinet next week will be published - that is a good thing - and that he has agreed with my proposal that the Joint Committee on Health be fully briefed by the Secretary General. It would also be helpful if there were people there from the legal section in the Department.

In 2005, when the Travers report into illegal charging for nursing home care was published, it blamed "systematic maladministration" in the Department of Health. The report detailed how an illegal charging regime had persisted for nearly three decades and stated that there were shortcomings at political level in "not probing and questioning" this charging regime. At the time, the current Tánaiste, Deputy Micheál Martin, was Minister for Health and Children. He maintained he had never been briefed on the issue, a contention that was hotly disputed by the then Secretary General, Mr. Michael Kelly.

Fast forward 18 years and it appears we are again being told that Ministers failed to question or probe this issue. We are told a briefing note in 2016 stated, "it has been agreed by the Minister and the AGO [Attorney General’s office] that settlements are made within the range of 40% to 60% of the capital value of the claim and on the best terms possible." The Taoiseach was the Minister who was briefed at the time that note was prepared. Yesterday, on "The Pat Kenny Show", the Taoiseach was quite categoric, stating he was never party to devising or agreeing a legal strategy in relation to nursing home charges. That was not the claim. The claim was that the Taoiseach went along with it. I take it from what he is saying today that he accepts that he went along with this strategy.

On Newstalk yesterday, the Taoiseach also said the State has always disputed any liability when people were placed in private nursing homes. This may have been the public position but was that really the case behind the scenes? The legal strategy suggests it was not that clear-cut. It stated that cases should be settled as soon as discovery was sought. In 2017, we are told, a briefing document that was provided to then Minister for Health, Deputy Harris, and then Minister of State at the Department of Health with responsibility for older people, Deputy McEntee, stated: "Discovery would carry very significant risks and should therefore be avoided." The implication of that seems clear. There were clearly documents within the Department that could expose the State to liability if they were made public.

The Government has now conceded that the legal strategy revealed by the Mail on Sunday does, in fact, exist but it said it predates 2011. That was the statement from the Government last night. Can the Taoiseach tell us when this strategy was first devised? Does he accept he was made aware of it?

When was he made aware of it? A more significant issue for all of the Ministers during that period is whether the Taoiseach or any of those Ministers ever questioned this legal strategy to determine if it was fair and if people were unfairly penalised for being denied access to nursing home care.

The Taoiseach

As I mentioned, the Attorney General has been asked to prepare a report on the matter for Cabinet next week and that report will be published. There will also be statements in the Dáil next week. As I think the Deputy acknowledged on the radio this morning, it is reasonable that Ministers should have a bit of time to put all of the documents together because this goes back a long way. There have been no new cases in over ten years, although many have been settled more recently. As the Deputy suggested earlier, this is something I am sure the Oireachtas Joint Committee on Health will want to look into.

As I mentioned in terms of my own role, I was Minister for Health from 2014 to 2016, which is six to eight years ago. I must have been briefed on the matter. Ministers before and after me were briefed, as were the junior Ministers, but I cannot tell the Deputy when or by whom, in what depth or in what detail or whether it was written or verbal. Hopefully, I will be able to find that out when documents are gone through in the Department of Health.

The policy and strategy were derived and agreed prior to my becoming Minister for Health. I do not specifically know if I was asked to sign off on continuing them but, as I said, if I was asked, I would have done so because this is a sound policy approach and a legitimate legal strategy by government. I would ask what the alternative was to this policy approach and legal strategy. The alternative would have been to open up the scheme to people who had attended private nursing homes, even though we did not believe they had a legal entitlement to any refunds. That would not have been right. Governments have a duty to protect the taxpayer. They also have a duty to protect the health budget and make sure it is spent on healthcare and not on refunds. We also have a duty to be fair to people and to be just, and I acknowledge that. It is very clear, however, that the State had strong defences in regard to this and that people who had medical cards, just as now, are not entitled to refunds for private care.

Deputy Róisín Shortall

Is the issue not that successive governments penalised medical card holders who needed nursing home care? That was the question I asked earlier. Throughout that entire period of 30 years, did no Minister ever say, "Hang on, why are we not providing medical card patients with proper care when they need it?". Does the Taoiseach accept that fundamental to this entire issue is the fact that there is no legal entitlement to public healthcare? We talk about, and have always talked about, eligibility for care even though in many cases that care is not provided. Is it not the fundamental issue that there is no legal entitlement to public healthcare in this country, irrespective of a person's circumstances? There is no legal entitlement in the way in which there is a legal entitlement to social welfare. Is it not time we addressed that issue?

The Taoiseach

That is a fair point and what the Deputy says is true. There is no universal legal entitlement to public healthcare or social care in Ireland and there was not at the time-----

Deputy Róisín Shortall

There still is not.

Deputy Mary Lou McDonald

There was no legal entitlement to charge.

The Taoiseach

There was no legal entitlement there and people who claim there was are incorrect. Things were changed in 2009, long before I was a Minister - I was in opposition, in fact - when the fair deal scheme was brought in. Certainly by the time the Government was formed in 2011 and by the time the fair deal scheme was set up in 2009, there was a scheme in place to provide nursing home care on a universal basis to people. There was also a compensation scheme that was established by the previous Government and its Minister for Health, Mary Harney. That compensation scheme was put in place for people who attended public nursing homes. This matter relates to people who attended private nursing homes and the view of the State was that their medical card did not give them an entitlement to refunds for private care, just as it does not do so now. Even if it had, it would not have been a case of just going to the nursing home of their choice and then asking the Government to pick up the bill. There would have had to have been some scheme in place. That is the defence the State had.

Deputy Róisín Shortall

It was because of a failure to provide public nursing home care.

Deputy Michael Healy-Rae

I want to raise a very important matter that was brought to my attention again at my clinic in Scott's Hotel on Saturday by a deputation of parents of children with special needs, our special children who are now young adults.

The question is about the lack of adult respite services in County Kerry. How is it acceptable that there is only one adult respite house in Kerry to service the whole of Kerry and part of Cork? Parents in certain places are having to travel a round trip of over two hours to drop off their sons and daughters and collect them in the evening before dropping them to their day services. Last year, parents were told there were more than 80 people waiting on a list to get into respite houses. Members of the group I met on Saturday have been waiting more than two years without any services. This is totally unacceptable. Most of these young adults availed of children's respite service for years but as they turn 18 and 19 years of age, there is nothing for them at the most vulnerable time in their lives when they are leaving school and moving into adult day care services. They are growing up and becoming young adults. It is causing a lot of distress to these parents.

I want to explain this to the Taoiseach in a very human way. When I was with this group, this deputation, on Saturday, and I know every Member of the House will understand what I mean, I could see a tiredness in their eyes and a weariness in them. All they are looking for is respite. They are more than willing to and capable of keeping their special child at home in their own environment. They want to do that and they will do that in the best way. As long as they are breathing they will do it, but what they want is respite. I am very grateful for the respite services that we got in north Kerry and for the great people on the ground locally. I recognise and thank every political contribution that was made in this regard, but we should all be pulling together. Killarney and its environs comprise a very big area. We have very special children there - I say children but I should say young adults, of course - who are turning 18 and 19 years of age. We want to be able to offer their families the respite they need. I am making this heartfelt plea to the Taoiseach and the Minister of State, Deputy Rabbitte, who I know met with representatives of this group in the past. I very much recognise and appreciate her work in this field but I want to see delivery of this service in the Killarney area for these very nice families. All they want is a thing called fair play.

The Taoiseach

I thank the Deputy for raising this important issue. I acknowledge how essential respite is for people with disabilities and their families. It gives people the break they need and, in many cases, keeps people going. They would not be able to keep going if it were not for respite and I know how important that is to people. The need for increased respite, including in south Kerry and west Cork, is acknowledged by the Government. The need for additional respite across the country is reflected in the HSE service plans for 2021 and 2022 and will be in the new service plan for 2023.

The last few years have seen significantly increased funding for additional respite. This has resulted in the expansion of both centre-based and alternative respite. The Minister of State, Deputy Rabbitte, will meet with community healthcare organisation, CHO, 4 on 9 February. Respite will be on the agenda, in particular the potential for facilities in south Kerry, which I know the Deputy will welcome.

Last year, an additional €9 million was provided for ten respite services for children and adults, as well as for alternative models of respite, including three additional specialist-based services, one for Prader-Willi syndrome and two to provide high-support respite for children and young adults with complex support needs. Funding for a further seven respite centres will provide approximately 10,000 more nights to 245 children and adults in a full year.

As for the plan for 2023, which the Minister of State is working on, she has secured additional funding in the budget that will provide for a range of additional services and individual packages nationally. The details are yet to be worked out; they will be in the service plan for 2023. As I said, the Minister of State will meet with the Deputy's local CHO on 9 February to bring things forward.

Deputy Michael Healy-Rae

I warmly thank the Taoiseach for his reply. If the Minister of State and the Government deliver respite services for the people of the Killarney electoral area and all that side of the country, I will be the first person to thank them most sincerely for it.

I will use the short amount of time I have left to say a word about St. Mary of the Angels, which provides an excellent service at St. Francis Special School in Beaufort. The staff provide a great service to our special young people with intellectual or physical disabilities. I remind the Taoiseach that a political decision was taken in 2011 regarding congregated settings. I do not want to fight about this but I will remind the Taoiseach of what this facility is. It is a wonderful facility. It was a farm donated by the Doyle family to be used as a centre for young people with special needs. There is a church, a heated pool and some lovely walks there. It is a safe environment that has everything going for it. Rather than closing it by stealth, which is what is happening because congregated settings are no longer wanted, I plead with the Taoiseach to look at reviewing the policy along with the Minister of State, Deputy Rabbitte, and other Ministers. They need to consider whether we got it wrong in 2011 and should look at allowing a place like that to flourish and be there for future families. I thank the Ceann Comhairle for his indulgence.

The Taoiseach

I think decongregation is the right approach. If anything, it has been happening too slowly. When congregated settings or institutions in my constituency have closed, I have seen how it can cause disruption and a lot of difficulty and nervousness among residents and families initially. When you meet them a year or two later, after they have moved into a house in a housing estate where they are integrated with the neighbourhood around them, it is amazing to see how people who were afraid about what might happen to them if they were decongregated really come on and flourish when they are in a house in the community and have a chance to interact with the neighbourhood. However, I acknowledge that one size does not always fit all. Sometimes there are centres that work very well where people are happy. We need to be open to that possibility.

Deputy Joan Collins

I share the concerns and questions voiced by Deputies McDonald and Shortall about public nursing homes but I want to raise the issue of the cost of living. A recently published Red C survey outlined some of the struggles people still face with the cost-of-living crisis. It found that 30% of people struggle to make ends meet, with young people and elderly people being hit the worst. Only 9% of people have not had to make any changes to their spending while 70% of people have had to reduce spending in the face of the cost-of-living crisis. This is the highest figure out of any of the 36 countries involved in the study. Bin charges are going up, rents are still skyrocketing, the price of groceries has gone up by 15% across the board and will not come back down, and standards of living in the country have dropped in three of the past four quarters. Women's Aid has said it has seen an increase in calls about domestic abuse, particularly relating to economic abuse. Homelessness is at an all-time high despite the eviction ban. I could not believe my ears when I heard the Minister say yesterday that homelessness was levelling off. This is cold comfort to the 11,632 people in emergency accommodation or the 90 asylum seekers sent out onto the streets last week. Inflation is still at a high of 9% while interest rates on tracker mortgages have rocketed. My recent gas bill was €780 when it was €347 this time last year with the same amount of units used. How are people on low wages supposed to pay these bills?

The economy may have grown by 12.2% but people are not feeling it. There is no reflection of growth in people's pay packets. Our economy is in no way set up to reflect this growth in ordinary people's lives. We hear this every day in my constituency office. Those who have had it hard for a long time are being hit the worst. While the supports put in place by this Government have helped in some way, they are not targeted enough. Age Action has said time and again that social welfare payments needed to increased by €20 in the last budget, which did not happen. The increase was €12, which was in effect a cut in people's pay packets. Age Action also called for supports to be more targeted.

The stress and hardship caused by the cost-of-living crisis are very real for many people. Many people must worry every day about how they will put food on the table, keep the lights on and keep a roof over their families' heads. The Taoiseach said there will not be a cliff edge when the cost-of-living supports end. People still need help. They are worried about losing the little help they have had and losing their homes when the eviction ban ends in April.

How will the Taoiseach guarantee that there is no cliff-edge when so many people are already on one?

The Taoiseach

I thank the Deputy for raising this important issue. It is fair to say that the rising cost of living is biting hard. It is affecting many people and families who are struggling to make ends meet, notwithstanding the help that has come from the Government in recent months. Inflation is slowing down and it is good to see that prices are not rising as fast as they were a few months ago, but they are still rising. That means that people are continuing to get worse off if their incomes do not rise as fast as prices are rising. We acknowledge that. It is important to say that a number of actions were taken in the past few weeks to bring down the cost of living for people and they are permanent. They include the reduction in the cost of childcare, the rent credit which people can now claim back in rent payments, of €500 or €1,000 for a couple, the increase in the pension of €12 a week and the increase of €12 a week in all weekly welfare payments. Those are all permanent changes. Tens of thousands more pensioners now qualify for the fuel allowance. Income taxes are going down, which people will see in their payslips this month. There has been an increase in the national minimum wage. Most people on low pay have seen a knock-on increase, which has been broadly in line with inflation. As well as that, another energy credit of €200 per household is due in March. Many things are being done by the Government to help people with the cost of living.

As the Tánaiste and I have said, there will not be a cliff edge at the end of February. A number of measures that were due to end at the end of February are now under review. We acknowledge that we will need to do something to help people with the rising cost of living throughout the spring. We have not made any firm decisions on that. The key Ministers involved will sit down next week to look at options with a view to making an announcement by the middle of the month in order that people have certainty going into March.

Deputy Joan Collins

The Taoiseach says that inflation is slowing down. It is still at a high of 8.9% or 9%, depending on who one gets figures from. People are still facing huge costs in their daily lives. The end of February is only four weeks away. The review will be in two weeks. The Government will have to come out of the box very quickly to explain what supports it will give to people. Will there be another cost-of-living double payment to assist people? A gentleman who is 69 years of age came into my office the other day. He had to have the heating on over Christmas and through the winter because his wife has a medical issue. He is facing a huge gas bill, nearly 60% higher than last year. What is that man going to do? He was nearly in tears in relation to how he is going to deal with the debt. Low-paid workers are going to feel that pressure too. Will the Taoiseach look at a mini-budget and increase social welfare payments by another €8 across the board, as Age Action Ireland has called for, and for supports to be more targeted for people who need them? I hope that what comes out in two weeks will be effective in addressing people's cost of living. Some 30% of people are still struggling to make ends meet. They are the people who should get supports.

The Taoiseach

We need to consider a number of options. It probably would not be useful for me to speculate on the options now because it might just raise expectations. We will discuss it next week. I agree that the measures need to be targeted. It might be the case that there will still be some universal measures but, generally speaking, they need to be targeted at those who need them the most, those who are struggling the most and those on fixed incomes. I agree with the Deputy on that point. Let us not forget that it is because of the strength of our economy and because the public finances are in a good position that we are able to intervene again to help people with the rising cost of living. In other countries where different economic policies have been pursued, Governments are not able to do that. They have gone back to austerity and people are on strike in many cases. In my view, it is a simple fact that, because we pursued the economic policies that we did and looked after public finances as we have, we were able to help people in the budget that has just gone by and will be able to help people again in the spring.