We will now take what we hope will be a peaceful Leaders' Questions.
Ceisteanna ó Cheannairí - Leaders' Questions
We resume hostilities.
Hello to everyone from Ballymun in the Visitors Gallery.
Yesterday the Taoiseach admitted to the Dáil that he was, in fact, briefed on Government legal strategy on nursing home charges. This was 24 hours after he stated that he was not involved in the strategy and sought to put distance between himself and it. Not only did he admit he was briefed and that his predecessors and successors in government were also briefed, but he also stated that he stands foursquare behind this plan, this strategy. His expressed view is that this was, and is, a good Government strategy - a heartless plan designed by Government to hardball elderly, vulnerable people and their families forced to pay nursing home charges they should not have been paying; a strategy to stop them getting their money back, to prevent them from vindicating their rights and to keep things quiet.
Last night, we learned on RTÉ's "Prime Time" that another cold and heartless Government strategy was in place to remove allowances - the disability maintenance payment - from people with disabilities in residential care. This was a Government decision that was deemed to be unlawful. The documentation from 2009 shows that the Government of the day knew that these citizens were entitled to their allowance but used their vulnerability to prevent them from getting their payment.
This was another political strategy put in place to stop ordinary people wronged by Government from taking their case to court. Why was this? The view of the Attorney General at the time was that the State would be unable to defend these cases successfully and so we have another strategy to conceal, to deny, to cover up and to protect the Government instead of protecting vulnerable citizens. In fact, this secret document set out that a comprehensive trawl of all of those who had been illegally stripped of their disability maintenance payment should not be done because, it said, “such an exercise would be unlikely to escape media attention or speculation and could generate further claims which otherwise would not have been made”. Worse still, the Minister for Health of the day and, indeed, the entire Cabinet, endorsed this strategy. Of course, it was endorsed again by the 2011 Government, of which the Taoiseach was part, because it was reflected in the memo I discussed with him yesterday.
The story of these Government strategies is a sordid tale of successive Governments involving Fianna Fáil, Fine Gael, the Labour Party and the late Progressive Democrats actively working against the interests of some of our most vulnerable citizens. Families were forced to use private nursing homes because of the failure of Government to provide places within the public system. These families were ripped off, with many forced to work into their 70s to just get by, in some cases on less than €30 a week. Now, we see a mirror image of this political strategy adopted by Government after Government against citizens with disabilities who are dependent on the State to look after them, to vindicate their rights and to protect them. These were citizens, many of whom lived in sheltered environments and who may not have had the capacity to initiate their claim. All of this has caused real hurt, real trauma and real hardship for many people; people who needed the Government to stand up for them instead of Governments facing them down and fighting them tooth and nail, at every turn, to deny them things they were entitled to. The human cost has been heavy and deep.
Does the Taoiseach believe that this Government strategy set out in a memo from 2009, and used against people with disabilities, was a legitimate strategy for Government? Is that a legitimate Government strategy? Does the Taoiseach stand by that? Does he call this also a good plan and a good strategy from Government?
I still cannot fathom why the Deputy always feels the need to misrepresent what I say in this House and what the Government says. Obviously, I stand over what I said yesterday in regard to me being briefed and I am still trying to get the documents around that. What I can say is that regarding a document that appeared in the newspapers yesterday in relation to 2016, we have confirmed from the Department of Health that I was not circulated on that document, and on the agreement between the Minister and the Attorney General's office I was not the Minister who made that agreement; it was a 2014 agreement. As the Deputy may know, when civil servants talk about “Ministers”, they often talk about "the Minister" in the context of the corporation sole, not necessarily the person who was the Minister on the day.
However, that does not matter; that is just a sideshow. What matters are the issues the Deputy is raising now. In regard to the historic nursing home charges issue, I want to emphasise once again that it does not relate to anyone in nursing homes today or, indeed, in recent years. That is an important point of clarity that people in nursing homes today and their families will want to know. It relates to charges prior to the 2005-06 period and those matters were resolved prospectively when the nursing homes support scheme, the fair deal, was introduced by the Minister, Ms Harney, back in 2009. That created a universal system that sets out how people are entitled to nursing home care and what contributions they need to make.
The State - the taxpayer - has compensated those who had paid charges in public nursing homes to the tune of €480 million. That was the right thing to do, and it was done. In regard to private nursing homes, the situation is different; it is more complex, and that was explained at the time back in 2006. We do not accept that medical card patients ever had an unqualified entitlement to free private nursing home care. The advice from successive Attorneys General is clear that that is not an accepted position.
Even to this day, medical card patients either choose or are forced to go privately, and we do not reimburse them for their costs. Where we do pay for medical card patients to go privately, there is a system in place of prior approval. That is the position.
It was never the intention of the Government or the Oireachtas to confer a right to free private nursing home care on medical card patients. That is clear from the debates in the Dáil if the Deputy wants to look back at them. That does matter. What the Oireachtas intended and what Government policy was do matter.
Some cases have been settled with a financial settlement, but others have been settled without a financial settlement, and some cases were not settled at all, because they had been managed on a case-by-case basis pending a test case, which has never happened. There will be a report from the Attorney General on this to the Cabinet next week and I know the Department of Health is keen to report on it as well.
In relation to the other matter the Deputy raised, which is the disabled person's maintenance allowance, DPMA, this was paid between 1973 and 1996 under the Health Act 1970 by the former health boards. I am advised that the allowance, which could be and was used for food, heating, electricity, rent and so forth, was paid to people who could not provide for themselves. The policy position at the time - this is going back to the 1970s, 1980s and 1990s - rightly or wrongly, was that this money was no longer required as the individuals were living in State-funded residential care and those needs were being met. People with a disability who were resident in long-term care facilities did not receive this allowance after the first weeks in residential care.
In 1996, the allowance was renamed the disability allowance and responsibility for it was transferred to the Department of Social, Community and Family Affairs, as it was called at the time. Since 2007, it has been paid in full to people with disabilities living in long-term care, so this matter was resolved 15 years ago. However, the question that arose in 2009 was whether there should have been retrospection and back pay. It is an historical issue, a legacy issue, but to me it does appear different from the nursing homes charges issue. It appears different in substance because the legal advice is different and the legal advice and position became clearer after the High Court ruling. It is something we are going to look into over the next week or two and respond to further.
Yesterday, the Taoiseach expressed incredulity at what was suggested. Here are his words so that I am not accused of misrepresenting or misquoting him.
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 they were entitled to. That is as far-fetched as it sounds. It is not what happened.
However, it is exactly what happened.
Deputies
Hear, hear.
That is exactly what happened. It happened in respect of preventing those who had been illegally charged in nursing homes from going to court, having the matter adjudicated and getting their money back. It also happened in respect of these citizens who, by the way, were entitled to that allowance. It was illegal. It was judged to have been ultra vires, illegal, for the State to deny those people that money. Again, the same strategy was used to keep it quiet, say nothing and not to raise the hare. The worst aspect of it is that government after government, knowing that the State had wronged and denied people things to which they were entitled, colluded and conspired in a strategy to ensure that people could not have their rights vindicated. Where is the compassion in that?
The Deputy's time is up.
Where is the care for people? Where is there evidence of a government standing up for people rather than facing them down-----
We are way over time.
-----many of them in the most vulnerable circumstances imaginable in society?
I think Deputy McDonald is conflating two different issues, and they are different, namely, the historical nursing home charges and the issue of the DPMA. The legal advice is different. The legal advice on the DPMA was that the State did not have a leg to stand on. The legal advice on the nursing home charges is that those charges were not illegal.
The strategy was the same.
It was the same strategy.
Deputies
Hear, hear.
That has never been established.
The Taoiseach should be allowed to speak without interruption.
Deputy McDonald is making an assertion that has not been established. She also made an assertion that people were prevented from going to court. Nobody is prevented from going to court. One cannot prevent somebody from going to court in Ireland. That is an entirely false statement.
The State settles before the case goes to trial.
There were cases that were settled and there are cases that have not been settled and they may yet go to court. That assertion is also false.
I have been a member of three governments. More so than ever, and more so than other governments have done or governments around the world have done, we have put a huge amount of time, care and resources into putting right some of the wrongs of the past, whether it is Magdalen laundries, mother and baby institutions, mica and pyrite, or the apartment block defects. The Government does have a responsibility to do what is right and just, but it also has a responsibility to protect the taxpayer and the common good. That means balancing the future and the past.
We cannot protect the past by attacking the vulnerable.
That is something that must be done.
On Sunday, it was illegal charges to older persons in nursing home care over the course of three decades. Last night, it was the removal of the DPMA from up to 12,000 vulnerable people in institutional care. Perhaps tomorrow we will see yet another story of a group of people being failed by the State. However, this is a much bigger story. The real story, as we see it, is the pervasiveness of what amounts to a callous legal strategy. In essence, the State approaches litigation against it in a manner indistinguishable from any faceless corporate entity. It is a war of attrition against those who dare to sue it. The route is well worn. People are denied legal rights unless they sue the State. If they do litigate, the cases are defended by the State and then, late in the day, prior to making discovery and certainly prior to going into trial, those with the resources and patience to keep going receive a settlement to avoid the setting of an adverse precedent that others could rely on in future. It happens everywhere. We have seen it in special educational needs cases, immigration cases and medico-legal cases against the State. It is also in the approach taken to those excluded from State redress schemes, such as those who have been subjected to sexual abuse in some schools, and to those affected by the Thalidomide scandal, on whose behalf I have been calling for a redress scheme for months. Again, this is a legacy issue that must be resolved by the Government.
It is darkly ironic that we are debating this issue today in anticipation of the debate later this afternoon on the mother and baby homes scheme, a redress scheme that is certain to exclude large swathes of people who were victimised by church and State throughout the last century. The context changes, but the results stay the same. People who can endure the cost and stress of years of litigation will get their legal rights, but those who cannot afford that, will not.
The Taoiseach has described this as a "legitimate legal strategy" but, rather than the vindication of rights, this is a "cost-containment" strategy, which takes priority for the Government. I have seen this in operation as a barrister where I acted for children from disadvantaged communities who were at severe risk of harm and who had been deprived of the care and support they needed. The only way to get the support they needed was to sue the State and show a readiness to go to trial. That is no way to treat vulnerable people who are being let down by the system. Those children who did not litigate did not receive any supports. The Judiciary was highly critical of that. This must be a watershed moment to see how we can ensure a change in Government policy. We ask the Taoiseach to call on Secretaries General of all Departments to come before the Committee of Public Accounts to attest to the legal strategy in place in each Department as regards litigation against the State. Is that initiative something the Taoiseach would support?
Second, would he support a re-evaluation of the role of the Attorney General to ensure he or she must take into account the common good or public interest as well as the more narrow financial interests of the Government of the day?
It is very easy to lump all these different cases and issues together and say they are all the same. They are not. They are quite different. For example, when it comes to the nursing home charges issue, the legal advice from the Attorney General is very different from his legal advice on the DPMA.
Sure.
I do not think it is right to-----
The strategy is the same.
The litigation strategy is the same.
-----put them all together.
Could the Deputies please not interrupt?
I am coming to that. I have been a member of three governments now, including a Government involving the Labour Party. We have put a huge amount of time, care and resources into putting right some of the wrongs of the past, even where there is no legal liability on the State. We have put in place a compensation scheme, for example, for symphysiotomy. In that case, the survivors went to court and they lost their case. Even though they lost their case in court, the Government decided anyway to set up a compensation scheme, which we did. Another scheme that we set up was for the Magdalen laundries, and we are setting one up for the mother and baby institutions, mica and pyrite, and apartment block defects. There were no findings of liability at all against the State in those cases.
They were not fought in court. On the contrary, we decided to set up schemes to help those people because we thought that was the right and just thing to do. How the Deputy is characterising this is not fair. She is taking a few examples and extrapolating those to every issue that has arisen. That is not fair at all. We set up those compensation schemes because they were the right thing to do and not because we lost, or were at risk of losing, court cases.
The Government has a responsibility to do what is right and just. We also have a responsibility to protect the taxpayer and the common good. We cannot spend the same euro twice. We want the education budget to be spent on educating children and young people today, we want the health budget to be spent on people who are sick and need medicine today, and we want the budget for children to be spent on children who are vulnerable today. If too much of today's budget is diverted to fixing the problems of the past, that has consequences. Governments and Ministers have to strike a balance between the future and the past. We try to strike that balance as fairly as possible.
The Taoiseach's response indicates exactly the point I am making, namely, that the Government of the day is not merely another defendant and it is not appropriate for any government to act simply as another corporate defendant. The Government must of course, as a democratically elected government, reflect and respect the rights and wishes of the people and the common good. That is precisely why the Labour Party is calling for reform of the Office of the Attorney General. This is not only in order for the Government to review the State's litigation strategy to ensure that the State and the government of the day are acting in the common good across all the cases where people have been done injustice and where people deserve redress. We are also asking, in order to guard against future similar litigation strategies being adopted against similarly vulnerable groups of people, for a review of the role of the Attorney General.
We are preparing a Bill that will not only ensure that the Attorney General's office will take regard of the common good and the public interest, as well as the narrow interest of government, but will also look at the publication of the advice of the Attorney General in specific cases. It is not always appropriate for the Attorney General's advice to remain confidential or for the person holding that position simply to act as if he or she is a lawyer advising a private client. The government of the day has a duty to reflect the wishes of the people and to act in the common good. The Taoiseach has acknowledged that and it is precisely the point I am making.
I acknowledge that it is the role of the Government to act in the common good. We may disagree on what the common good is from time to time. I accept it is the responsibility of the Government to act within the common good, which is why I do not accept this charge that has been made, namely, that the Government only does the right thing when it is dragged to court or loses a court case.
That is the record.
I have given the Deputy several examples of cases where the Government put a redress scheme in place, even though the case was lost in court. Symphysiotomy is one example of that. The Government also decided to put in place compensation schemes in respect of mother and baby institutions, Magdalen laundries, mica, pyrite and apartment block defects, despite the fact that there was never a finding against the State with regard to those matters.
What is the common good? The common good has to take into account what is right and just. It also has to protect the taxpayer and look at what is the broad common interest. Yes, we want to put right the wrongs of the past but we need to bear in mind that there are demands now and for the future. With the best will in the world, no matter what the financial position is for any Government, it can only spend the same euro once. As much as possible, we want budgets to be spent helping people who need that help today. That is the judgment call people have to make.
People wishing to avail of the disabled drivers and disabled passengers scheme, which provides tax relief on the purchase of specially constructed or adapted vehicles for someone with a disability, are being rejected at community level and then left waiting for an appeal date due to the inaccessibility of a sitting board. To qualify, applicants have to obtain a primary medical certificate via assessment at community level. It does not take a medical qualification to know that the language used for the six criteria is highly restrictive and excludes many people with genuine, severe and permanent disabilities from accessing supports. When deemed ineligible at the community medical officer level, people appeal the decision to the disabled drivers medical board of appeal, DDMBA, the board of which is made up of medical practitioners appointed by the Minister for Finance.
We need a scheme that looks at disability in terms of functions rather than pathology. We should ask about a person's level of function and what the person needs in the vehicle. They should qualify on that basis, whether they are autistic, epileptic or a stroke patient. We need to look at a graded system of support. Some people need big adaptations, such as a special vehicle in which a wheelchair can be placed as they cannot drive themselves, while others just need a specialist seat or a swivel seat. It does not have to mean a big benefit to everybody who qualifies for it.
I thank the Deputy for raising this important issue. The Government recognises the need to ensure that there are accessible transport options and appropriate mobility supports for people with disabilities. The disabled drivers and disabled passengers scheme provides relief for vehicle registration tax and VAT on an adapted car, as well as an exemption from motor tax and an annual fuel grant. The scheme is open to severely and permanently disabled persons as a driver or passenger and to certain charitable organisations. In order to qualify for relief, the applicant must hold a primary medical certificate issued by the relevant senior area medical officer or a board medical certificate issued by the DDMBA.
The DDMBA is expected to be re-established shortly, following the resignation of all members of the previous board in late 2021. Following three recruitment campaigns, five candidates have now been nominated by the Minister for Health and have just completed their Garda vetting. Department of Finance officials have held two meetings with the nominated members and are in contact with the National Rehabilitation Hospital about recommencing the appeals process. The disabled drivers scheme has been reviewed as part of a broader review of mobility supports carried out as part of the work of the national disability inclusion strategy and transport working group. This working group is under the chairmanship of the Minister of State at the Department of Health, Deputy Rabbitte. It held several meetings last year. A draft report was considered at its final meeting on 8 December and is currently being finalised. We expect it to be published soon.
I again thank the Deputy for raising this issue, which I accept has dragged on for far too long. We want to make meaningful progress on it in the very near future.
I thank the Taoiseach for his response but I remind everybody that three schemes were operating at one time. The other two schemes were suspended in 2013. It is now 2023 and these schemes have not been replaced, even though it was indicated at the time that alternatives would be devised. I understand that since December 2021, three previous members of the DDMBA have participated in a subgroup to review the disabled drivers and passengers scheme set up by the Department of Finance, lending their experience and expertise to devise a new and fairer scheme. My understanding from departmental officials is that it is agreed that its review will come under the national disability inclusion strategy.
Will the Taoiseach please clarify the current situation as regards applicants for the board? As I said, 400 people are on the waiting list, which is not fair. A constituent came to my office last week who is in a very serious position in respect of this issue. I ask the Minister for Finance please to get the board up and running as soon as he can. These people need help. It is not a massive amount of money. They and their families all need a little help.
I am afraid I do not have answers to all the Deputy's questions but I will let the Minister for Finance know that the matter was brought up today. We will see if we can come back to him with some more details. It has taken longer than anticipated to recruit the new board. We hope the board can make inroads into the backlog over the next couple of months. As the Deputy said, there are three different schemes.
The disabled drivers scheme has been reviewed, and we are waiting for the publication of the national disability inclusion strategy, NDIS, before deciding what steps should be taken next. The Department of Finance recognises that the scheme is no longer fit for purpose and is not in line with best international practice. We want to make sure there is a new scheme that works for people.
Under the programme for Government, Ireland is projected to plant 450,000 ha of forestry between now and 2050. That is about 1.1 million acres. In 2023, with all the debacle that has gone on with forestry over recent years, farmers, if they want to apply to plant trees, cannot do so because the Department will tell them that it is waiting for state aid approval. Along with that - this seems to be the week of leaked documents - in Europe a document from the Directorate General for Agriculture and Rural Development, DG AGRI, was leaked which had on its cover a note to top civil servants not to carry it in public, to use encrypted software and, if at all possible, to shred it if anyone sees it. In that document the Commissioner states that there will be major problems under the proposed rewetting or the nature restoration project Europe has proposed. DG AGRI has stated that there will be major problems under the Common Agricultural Policy, CAP, major problems for farmers and major problems for the farm-to-fork strategy.
A few months ago, I brought this up here and talked about approximately 800,000 acres that have been proposed in Ireland. There is also a proposal under the nature restoration law relating to 70% of drained peatlands. When I talk about drained peatlands I am talking about the likes of Listowel, where the black and white cows are up and down the field, and a lot of the west of Ireland, where farmers of sheep and suckler cows earn a living on parts of their farms. If this proposal comes to pass, it will decimate a certain part of the country. If what I have talked about is totalled, it is at least 2 million acres. That 2 million acres will go from the top of Donegal down to the bottom of Kerry or out to part of west Cork. It will come out to the midlands. It definitely will not, however, touch the Golden Vale because there are no peatlands there. It definitely will not touch the Hill of Tara, good land in Kildare or a lot of other parts of the country. It will, however, affect small family farms in the areas I have mentioned.
Is it not worrying to the Taoiseach that a Commissioner has a secret document internally in the EU that states very clearly that there are major problems under CAP and major problems for farmers? Politically, this is a hot potato, and still the Taoiseach, as leader of the country, and his Government are now supporting this document or the proposal on the nature rewetting law. Will he or his Government put a halt to what is going on for the sake of the small family farms in the areas I have outlined?
I thank the Deputy for raising the issue of the EU nature restoration law. We support the European Green Deal and support in principle the proposed EU regulation on the nature restoration law. It was published by the Commission in June 2022 and aims to restore nature and biodiversity. The proposed regulation in its current form, however, is very ambitious and goes too far, and we have real concerns about the real challenges that would be posed by its impacts, timing, equity considerations and deliverability. Each relevant Government Department has been asked to undertake as a priority an analysis of the likely sectoral impacts in order to inform a coherent national impact assessment, including the economic cost arising and the impact on farmers and farm families and rural communities, particularly along the western seaboard. Formal negotiations on the regulation began under the Czech EU Presidency and are now continuing under the Swedish Presidency. The expectation is that the regulation will be ratified by the European Parliament and the Council in the middle of this year. Under current proposals, the regulation, once ratified, will come into force and member states, including Ireland, would have two years to prepare a national restoration plan. We would therefore have to have that plan prepared by 2026.
I have not seen any secret documents, I am not aware of them-----
I can email them to the Taoiseach.
-----and it is not possible for me to comment on them.
The Taoiseach said first that the Government supports the proposal, and then he said it has grave concerns. If it has grave concerns, how is it that every other country, including the Netherlands, Norway and Sweden, has written back already and most of the countries in the EU have written back opposing this in is present form? Why have we not written back and outlined the things in it that the Government is concerned about? We had representatives of the Directorate General for Environment, DG ENV, before our agriculture committee last week. They are not concerned about the Government doing an analysis in Ireland. They made very clear to us at the committee that they had taken an overall look at this. When we asked them what the consequences of this will be in Ireland, they said they look at it on an overall basis, not country by country. We are unique in this regard. I ask the Taoiseach to put a halt to what is going on. The Government should not ratify this or the Taoiseach and his Government will be the cause of small family farms in the west, north west and south west of Ireland being driven out of business on account of this. There is time for the Taoiseach to act and I ask him to do so.
As I said, we support the European Green Deal and, in principle, the EU nature restoration law. I think all of us want to see nature restored, an end to biodiversity loss and the restoration of biodiversity across our country. There are, however, aspects of this that are very ambitious and go too far, in my view. We are carrying out a national impact assessment so we are developing a position on the EU nature restoration law. It is being led by the National Parks and Wildlife Service but is cross-government. An interdepartmental group has been established, as has a senior officials group, and there will be a memo to the Cabinet very soon setting out the Government's position on it. Of course we will have regard to the impact on farmers, farm families and rural communities, particularly down the western seaboard. I appreciate the concerns the Deputy has raised in that regard.