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Joint Committee on Public Service Oversight and Petitions díospóireacht -
Wednesday, 6 Feb 2013

Mobility and Motorised Transport Allowances: Discussion

We are now in public session. I welcome the Minister for Health, Deputy James Reilly, the Minister of State at the Department of Health, Deputy Kathleen Lynch, Dr. Ambrose McLoughlin, Ms Geraldine Fitzpatrick, Ms Gráinne Duffy, Mr. Harry Harris and Ms Cate Hartigan. I remind those present, including members, media and those in the people in the Visitors Gallery that mobile telephones and Blackberrys must be turned off completely because they interfere with the sound system even if they are on silent.

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they give this committee. If a witness is directed by the committee to cease giving evidence in regard to a particular matter and the witness continues to so do, the witness is entitled thereafter only to qualified privilege in respect of his or her evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise nor make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.

I invite the Minister for Health to make an opening statement.

I thank the Chairman and the committee for the opportunity to appear before them and to answer their questions in regard to the mobility allowance and the motorised transport grant. I propose to make some opening remarks on the complex issues which the Ombudsman previously highlighted to the committee and the considerable efforts being made to address these issues. The Minister of State, Deputy Kathleen Lynch, who has responsibility for disability, mental health and older people will talk in more detail about the schemes, their history and how they operate. She will also outline for the committee the significant cost implications which have been identified so that members can understand in more detail the considerable challenge facing us in addressing this matter.

The motorised transport grant and mobility allowance were established in good faith and with the best of intentions in 1968 and 1979, respectively, to meet mobility and transport needs of a particular group of people with severe physical difficulties. The transport and mobility needs of these individuals were not adequately catered for at that time. Were we to try to meet the mobility and transport needs of people with physical, sensory, intellectual and mental health disabilities today, it is extremely unlikely that we would establish schemes of this type. This is especially important in terms of the general policy of mainstreaming of services for people with disabilities. Clearly, these schemes in their present form do not comply with that policy.

The recommendations of the Ombudsman in regard to how these schemes have been operated are clear and neither I nor my Department has disputed the position she has taken. The Department has previously acknowledged the inequalities in the schemes as they currently operate. However, the direct costs in terms of expanding the eligibility criteria for the schemes as they now operate are completely unaffordable for the State.

In seeking a solution which will address the transport and mobility needs of all those who require supports, we are mindful of the group of people who are currently benefitting under the schemes but, importantly, we must equally consider the broader group whose needs the Ombudsman has found must be looked after on an equitable basis. We have no dispute with the Ombudsman in that regard.

However, it is imperative that all members understand the financial implications. Funding for both these schemes, as they operate currently, is €10.6 million per annum in total. Any solution to this issue must be delivered within that resource capped budget. Widening the eligibility criteria, as required, will mean that many multiples of additional claimants will have to be paid out of that allocation of €10.6 million. Based on the Department's best estimate using data from the census and the disability databases, this would mean reducing both the allowance and the grant to a level which would severely limit the benefits to all recipients. This does not even factor in the increased administrative cost. Were we to increase the budget for the schemes, this additional funding would have to be taken from front-line services for disabilities, mental health and older people and I do not consider that option to be either practical or fair when one considers the sums involved into which I will go in a minute.

I am continuing to consider the recommendations of the Ombudsman in regard to both schemes very carefully. It must be acknowledged that an extension of either scheme, as recommended by the Ombudsman, without a dramatic reduction in the monthly payment or grant, would create serious financial pressure on the health budget in the current climate and would be unsustainable. The estimates we have are €200 million over three years for the motorised grant and €100 million per annum for the mobility allowance. That would mean a €500 million additional spend over three years. That would be much greater than the current home help-home care packages' budget, and when one considers the size of the fair deal budget, that would be more than 50% of it.

However, I am happy to discuss the matter with the committee and, in particular, I would be most interested to hear any ideas the members may wish to propose as to how the matter may be addressed in the best interests of all, within the severe financial constraints imposed on us. Following our discussion today, which I sincerely hope will be productive and positive in terms of proposing solutions to this matter, I will take further advice with a view to making proposals as to the future of both schemes following further discussion with my Cabinet colleagues and ministerial colleagues but not before a full dialogue with service users who must be to the fore of our concerns.

In short, the difficulty we face is to meet the needs of those with disabilities whose very independence is dependent on these grants. To put this in context, this could mean the difference between being able to get into one's own car and going where one wants to go when one wants to go, something we all value, and having to call and wait on someone else, no matter how kind, obliging and efficient the person. We must look after the needs of the people who need this grant yet stay within the law and have an affordable scheme. I will hand over to the Minister of State, Deputy Kathleen Lynch.

I echo the thanks expressed by the Minister to the committee for the opportunity to discuss the issue today. As he outlined, the issues with these schemes are complex and ultimately resource limited. While we are continuing to work on these issues I too would sincerely welcome any constructive input the Members of the committee may wish to propose as to how the matter may be resolved. It is not just the committee that we will consult as outlined by the Minister. It would be helpful to talk in more specific detail about the schemes in terms of the number of beneficiaries, how they operate and the implications of a broadening of the criteria for the financing and administration of the schemes.

The mobility allowance was established in 1979 as an administrative scheme by way of departmental circular. There have been two further circulars in 2002 and 2007 but the basic eligibility criteria for the allowance remains. The person must be unable to walk or be in such a condition that the exertion required to walk would be dangerous to their health. The allowance is payable by the Health Service Executive, subject to a means test, to a person with a severe disability. Applicants must be 16 years or older and under 66 years. The allowance was designed to help eligible people to benefit from a change in surrounding, for example, financing the occasional taxi journey. The mobility allowance is paid monthly and the current rate is €208.50 per month. There are in excess of 4,700 recipients of mobility allowance at an annual cost of €9.3 million. The allowance is targeted at the transport needs of those with a severe disability. As it is a payment that is unvouched there is no evidence that the monthly payment is applied to meet a person’s transport needs. I am sure that it is often used for other things as well but in a way that enhances the person's life.

The motorised transport grant is also an administrative scheme. It is a means tested HSE payment to enable a person with a severe disability to purchase or adapt a car where that car is essential to retain employment. The maximum grant is €5,020 payable once in any three year period. More than 300 people receive the grant each year at an estimated cost of €1.3 million. Eligibility for the motorised transport grant may also be considered in exceptional circumstances other than for employment retention, for a person with a severe disability who lives in very isolated circumstances and where their disability prevents them from using public transport.

The Department of Health originally signalled its intention to review the mobility allowance scheme in late 2009. In April 2011 the Department accepted the Ombudsman's findings and recommendation to review and revise the mobility allowance scheme so as to render it compliant with the Equal Status Acts. The Department also noted that the Ombudsman, in a footnote to her recommendation, expressed no view as to the terms of the revision of the scheme other than that the revised scheme should be compliant with the Equal Status Acts.

Notwithstanding the Department’s commitment to meet the six month timescale laid down by the Ombudsman in her report, entitled Too Old to be Equal, it has since proved extremely difficult to resolve the matter. A number of policy options have been considered in the intervening period. These have raised significant issues including the feasibility of extending eligibility under the scheme due to the potentially significant cost implications; creating a new scheme available to all those with clear mobility needs because of their disability and keeping within current spending – the resultant payments to the people eligible would be so reduced as to make them almost meaningless; and the inappropriateness of extending or formalising schemes which no longer accord with the Government’s mainstreaming policy on disability, and where alternative transport options are increasingly available for people with mobility difficulties under the relevant State agencies.

The Department is not in a position to amend the circular related to the mobility allowance, as recommended by the Ombudsman, without significantly reducing the amounts payable to each person under the scheme. The recommendations, if implemented without a reduction in the amounts payable, would ignore the serious financial constraints on the Department, the HSE and the State generally. Implementation of the recommendations would create liabilities that the State simply cannot afford. These additional costs would have to be met from current expenditure and would result in a reduction of front-line specialist disability, older people and mental health services to people who need them.

Similarly, the Department is not in a position to amend the circular related to the motorised transport grant, as recommended in the Ombudsman’s report, without reducing the amounts payable to each person. Expansion of the definition of disability would impose serious financial constraints on the Department, the HSE and the State generally. The recommendations, if implemented as outlined would, similar to the mobility allowance, create liabilities that the State could not afford.

The Minister has already outlined that we are conscious of the 4,700 people who receive the mobility allowance and the 300 people who receive the motorised transport grant each year. Unfortunately it is not possible to expand these schemes in such a way to achieve compliance with the Equal Status Acts without incurring direct additional costs estimated at €100 million per annum for the mobility allowance and €200 million over a three year period for the motorised transport grant. It is important to note that there will be a large indirect administrative cost to and burden on the HSE at a time when back office resources are expected to decrease. Meeting such costs would result in severe service cutbacks in the disability, older people and mental health services. By way of an example to the committee, removing this level of funding, at an average of €170 million per annum, from front-line services would eliminate all day, residential and personal assistant services for people with physical disabilities; or it would reduce employment levels by approximately 3,400 staff or 14% of all staff; or remove around 2,200 residential places for people with disabilities, a quarter of all residential places; or cut around 10,000 day places for people with disabilities which equates to half of all day places. Another alternative would be to reduce payments within the available budget. This would reduce them to such an extent as to render the payments almost meaningless, particularly in the context of meeting transport needs.

If the schemes were extended to the widest possible category of persons with disabilities, and the level of available funding remains as it is the mobility allowance could be reduced from €208.50 per month to €12.20 per month. The motorised transport grant could be reduced from a maximum of €5,020 in any three year period to a maximum of €67.50 in that three year period. The committee will agree that such changes would be meaningless in view of the costs incurred. Clearly severe reductions of this nature would not serve to best address the type of supports the schemes were intended to put in place.

As the Minister outlined, the Department continues to seek a solution that will best meet the aims of supporting the transport or mobility needs of those who most need them while remaining within the budgetary cap. I am pleased to have the opportunity to discuss the matter with the committee. I am anxious to hear the comments of the Members present as I know that they have a particular interest in the topic. If this matter was easy to resolve we would have done it long ago but it is particularly difficult. The one thing that everyone at this table is conscious of is that at the heart of all of this are people who depend on the funding to gain access to the outside world. We are very conscious of that and is why we are still putting in place a mechanism that will address this difficult and complex problem.

I thank the Minister and Minister of State and I call Deputy Ó Snodaigh.

I shall be brief as there is a good crew of Members who wish to comment. The Ombudsman found that the upper age limit was illegal and not in compliance with equality law and, at this stage, we have heard from both the Minister and Minister of State.

What steps will the Minister of State take at this stage? She has said she cannot take the steps the Ombudsman has said require to be taken yet there is no plan laid out for bringing the existing allowances into line with the Equal Status Act because in both contributions mention was made of €10.6 million, with €9 million for the mobility allowance of which there are 4,700 recipients. How many people would receive the mobility allowance if the change required by the Ombudsman was made to reflect the Equal Status Act? There is a restrictive qualifying criteria on this one in particular because according to the Minister the person must be unable to walk or be in such a condition that the exertion required to walk would be dangerous to their health. That suggests that not everybody on a contributory or a non-contributory pension would qualify for it. It is much more limited in terms of the criteria. The Minister mentioned that a figure of €200 million would be required. That suggests over 100,000 people would qualify for it, which is a very high figure.

I understand that we are all here to offer solutions. The committee is coming to it in this type of detail for the first time but we have been looking at this for a considerable time. The €200 million is in regard to the motorised transport grant, which is different. These are "guesstimates"-----

And €100 million for the other one.

Yes, €100 million for the other one. In terms of what is available now, as the Deputy rightly pointed out there are 4,700 recipients of the mobility allowance. There are approximately 300 applications per year for the motorised transport grant. If we were to comply, our best guess is that the number of recipients of the mobility allowance would increase to a possible figure of 63,500 and the number of recipients of the motorised transport grant would increase to 19,250 every year.

Could the Minister repeat those figures?

Of course. The figure for the mobility allowance is 4,700 recipients, and the figure for the motorised transport grant is 300 applications per year. If we were to comply, the mobility allowance figure would increase to 63,500 recipients and the figure for the motorised transport grant recipients would increase to 19,250 per year. There is a different application system for the motorised transport grant. Under the current scheme one is entitled to change one's car only every three years but that three year rolling process gives us 300 every year, and the number of recipients would increase to 19,250. People understand the difficulties.

In terms of the steps we will take, we have been looking at this and had come up with different formulas along the way, all of which, once we examined them, had significant flaws and had to be removed. It is not as if we have not been looking at this issue; we have.

Despite the fact that we know the number of people in receipt of that allowance it is very difficult to know where those people are and their circumstances in terms of access to transport. We are very conscious that someone who is not mobile but who might use one of the big chairs, for example, may have a transport system outside their front door that they can use, but equally they could have a transport system outside their front door that they cannot use. All of that configuration is important and must be taken into account but we intend to bring in someone to take a serious look, and we are not talking about big numbers, at where these people are, their circumstances, the possibility of putting a different scheme in place and so on. Someone with an expertise in the area and who knows how the system works will look at putting a scheme in place that will benefit people. We will be asking that person to have in-depth consultation with people with disabilities.

There are probably solutions that we have not thought of and it is only the lived experience that will give us that type of feel for the work. I hope that answers some of the Deputy's questions and that he understands the complexity of what we are trying to do.

Cuirim fáilte roimh na hAirí. Tá a fhios agam go bhfuil siad gnóthach agus is mór an onóir dúinn gur tháínig siad isteach leis an bhfoireann ar fad. To follow on from that discussion, would it be possible for the committee to get a breakdown of those Estimates the Minister has just announced? We have been going through things in some detail here and would welcome the actual breakdown and an indication of the criteria she used. In her contribution the Minister referred to the schemes being extended to the widest possible category of persons. Is that the worst case scenario, and has she examined other possible scenarios?

We had a number of Ministers before the committee on these issues relating to the Ombudsman, and they raise fundamental questions about the role of the Ombudsman vis-à-vis Departments. One of the questions raised with me regarding these sessions is whether there is a different law for Departments and ordinary citizens in that if I cannot pay my household charge and say it is due to economic circumstances, the full rigour of the law will be brought down upon me whereas if a Department says it cannot do this because it cannot afford to do it, it somehow gets flouted. The perception is that Departments take an à la carte approach to the Ombudsman's findings. That is unacceptable because the Ombudsman is independent. Their ruling is based on the law. The Minister's Department has been found to be in contravention of the Equal Status Act and that must be rectified.

Does the Minister have any detail on whether the Department has had to make settlements with any individuals who were unfairly treated because the Department was in breach of the Equal Status Act in this particular scenario? In terms of a worst case scenario, if more people took cases against the Department what would it cost the Department to cover the cost of compensation to those people who are not being given their rights under the Equal Status Act?

In terms of Government and the private individual, I always take the view that I am spending his or her money and they are spending their own money. That is a clear distinction. In terms of anyone taking a case for which we have had to compensate them, we have not. The Department of Health does not have a laissez-faire attitude towards the Ombudsman. The Ombudsman's findings are correct; no one is disputing them. If the Deputy were to take a serious look at what the Ombudsman has concluded, we should be expanding the scheme but the difficulty with expanding it is that we cannot afford it for reasons that are out of our control at this time. The Department does not have a laissez-faire attitude but we must take a practical view of this while seeking to protect those we know rely on these payments.

To cut a long story short, what the Minister is telling us is that the State is too broke to give disabled people their legal rights and entitlements. That is appalling. The Ombudsman is just doing her job, and she expressed indignation to this committee that the laws which are supposed to apply to everybody are not being implemented by the State.

Sorry, will the Deputy please finish his question.

She is expressing the view - it is right to hold the view - that the law is the law and the State should uphold the law. I do not see how the Department can evade that responsibility. Given that the Minister of State said she would take a serious look at the scheme, can we take it she has not done that since the matter was brought to her attention in 2009? That would appear to be the case and that is the sense one gets from the report and comments of the Ombudsman which is a serious failing on the part of the State.

The Minister of State said no legal cases have been taken. I am not a legal expert but on the face of it if anybody takes a legal case he or she will win, given that she has admitted the schemes are not compliant with the law. The law provides that the changes should be made and these people should be eligible. If they take a case they will win and, frankly, since the issue is in the public domain I would be surprised if people do not start to take cases because they are legally entitled to do so. Not only this Government but the last Government failed to address this serious issue but it cannot be evaded any longer. The Government has to act urgently. What the Minister of State appears to be saying is that she does not know what to do. This Government and the previous Government have been sitting on the issue for the past few years and do not know what to do. It is proposing to invite experts in to try to figure out what to do but it is not compliant with the law. That is a drastic state of affairs. Has the Minister of State nothing more to say other than that she will get somebody else to look at the scheme?

I was hoping the Deputy would have a few suggestions but obviously not.

I will give suggestions in a minute.

Please allow the Minister of State to respond. The Deputy may come back in with a supplementary later.

This is not about having someone to take a look at the scheme. We know the difficulties with the scheme. What we are doing is inviting someone in to draw up a new scheme. There are options, some of which we do not want to take. We could find a solution in the morning but we want a compassionate solution and one that works. That is the reason we are inviting somebody in to draw up a new scheme in consultation with people with disabilities. The issue has been around for a considerable period. This is not the first time we have looked at it and we have arrived at solutions but unfortunately they were flawed and, when examined, we realised they would not comply. The difficulty is that under the budget constraints, we are all restrained by budgets in the circumstances in which the country finds itself, we have to find a way of ensuring that the people who most need the service are protected. I do not know anybody in the room who would disagree with that. Nobody is saying the Ombudsman's report is incorrect, we know it is right. The difficulty is how to find a mechanism to comply with it.

There is one option the Minister of State is not considering, namely, to review the budgets. What she is saying is that the allowances have to be reduced to such an extent that they are meaningless or make other savage and unpalatable cuts elsewhere in the health service or some combination of both. What the Minister of State is not considering, or it is simply not on the agenda for discussion, is that she comply with the law and look at the budgets and increase the budget to make the schemes legally compliant. Why is the Government not considering that option?

It is because we do not have the money.

Governments have options. When it comes to the rights of disabled people, the Government does have options. For example, it can raise taxes. There are other options but the Minister of State appears to consider only the unpalatable ones from the point of view of either the health services or people who are legally entitled to these allowances. Is it fair to say that is the case?

No, it is not. If the Deputy listened to my contribution he would have realised that we are inviting somebody in to devise a new scheme. That is the other option. We hope that scheme will continue to protect the people most in need of the service. I have said that three times - in my opening remarks and in response to questions. We do not know yet the shape of the scheme but we hope it can be operated not only in an efficient manner but that those most in need of the service will receive it.

I might allow the Deputy in after some others have contributed.

It is most regrettable that this issue has not been resolved. Clearly, the Department is in contravention of its obligations under the law. This is a useful exercise because this is the first occasion on which the Department has accepted that there is a breach. I welcome the fact that the Minister, Deputy Reilly, said he had no dispute with the Ombudsman on the principle of the issue. The question is how the Department becomes compliant. I accept the bona fides of the Minister and Minister of State. I put it to the Minister of State that it would appear that the most viable option is to introduce a scheme that would change and limit the eligibility criteria on the basis of the Government pleading inability to pay which, in the circumstances, is not an option that any Oireachtas committee could accept as being reasonable in the circumstances. We are looking at a change in eligibility down the line. We take it that the Department of Health acknowledges that the Ombudsman is right in what she has said. As recently as last October, in a letter to the Ombudsman the Secretary General rejected what the Ombudsman has said. Are we now agreed that what the Ombudsman said in her report is correct, that the Department does not have an issue with that and is accepting the illegality and we look to a new framework with eligibility conditions contained therein. If that is the case what is the timeframe on the part of the Government?

I shall let the Secretary General respond.

Dr. Ambrose McLoughlin

What the Deputy said is correct. We accept the position of the Ombudsman and we will strive to seek out a policy position which will deal with the issue. We need to be sure that we are asking ourselves the right question. The question is how to best cater for the transport, travel and mobility needs of people with a disability within the current resources. I can assure the committee of the best efforts of the Department to deal with the issue and to do so in a timely manner.

In regard to the process in which we are engaged, we would like to have it completed within a six month period and as soon as practicable.

I thank the Minister and the Minister of State for appearing before the committee. It is taken as correct that in order to be fair to people, irrespective of age, we should look at the scheme with new eyes.

Fairness and compassion are the two words that still obtain. The starting point is that people with disability and who have been means-tested are the potential applicants for the scheme. When the schemes were introduced they were designed, especially the motorised transport grant, to help people hold down employment and assist them in exceptional circumstances and isolated cases in order that they would not become prisoners because of where they lived. That was a sensible starting point.

Means tests can show that people suffering from disability require compassionate accommodation so they can live fruitfully and well, not in luxury, but just at a minimum. As the Minister has said, we must get experts to seek and design a new approach so that we can apply fairness and equality in a family situation, but there is only so much in the budget. So long as it is fair and those most in need are dealt with, then a good day's work is done. It might mean looking at the resources of the Government in a bigger and wider context and perhaps raising some taxation. We must tell this story to the people at large. We must inform them that we are responsible, that we aim to be fair and that we will comply with equality that is part of the law. It is up to the citizens to accept the position and to understand. It is also helpful to know the current numbers affected and why the situation is the way it is. As the Minister of State said, the mobility allowance was introduced on a departmental circular basis with the intention of being targeted and generous towards people with limited means and disability. We must now take on the new context of equality and yet be conscious of the limited means and our objective to be fair. If it means raising some resources, then perhaps we will have to do that too. The matter must be addressed and worked out.

I thank the Deputies for their comments and reiterate what my Minister of State has said. We know that the scheme cannot continue in its current form and that we must find a solution. She also said that if the solution were easy, we would have found it some time back. As Deputy Boyd Barrett has said, the problem was first uncovered in 2008 and 2009. It has not been ignored by us. We have wrestled with it and come up with solutions, as the Minister of State has said, only to find that they do not meet the standard required either. I agree that we must examine the problem with new eyes and we hope that the fresh eyes of this committee will help us today. Of course, we will engage with those who are service users and have a much greater understanding of their needs than we will ever have. We must ensure that the solution delivers for those who need support and assistance. It must also be realistic in its affordability and within the law. Those are the parameters that we strive to meet. The process has been difficult but we will try to expedite it and bring it to a head in the best way we possibly can. As Deputy Mathews said, fairness and compassion must be at the heart of what we are doing in order to look after those who need the service and for whom it makes such a great difference to their daily lives.

Dr. Ambrose McLoughlin

For clarification, did Deputy Flanagan refer to my letter of 3 October?

It was dated 22 October.

Dr. Ambrose McLoughlin

We are talking about the letter dated 3 October, and for the purpose of clarity, we accepted the Ombudsman's position and we signalled the difficulties we faced. As far back as 2011 my predecessor was very exercised about the matter.

There will be the opportunity to move forward once we know the full range of facts, possibilities and limitations. As the Minister echoed again, we must bear in mind compassion and fairness for people who, by definition, are disadvantaged through disability and means.

I warmly welcome the Minister and Minister of State and all of the heavy hitters from the Department and the HSE. This is a unique occasion. The one thing I see wrong with the matter is that every day the people must comply with different regulations. I listened to the Minister of State's views on the subject. She was a bit cross and said we do not have the money. I appreciate and respect her position and the difficulties in which she and the Minister find themselves. We must think, however, of the people who must comply with all types of regulations, such as the farming and business communities. What if a farmer said he could not fully comply with regulations because he did not have the money to erect a slatted tank? What if he apologised for not complying but that he must operate illegally? He cannot do that. Since 2000, and long before it was in the Minister's gift, the Department operated illegally. What sort of message are we giving hard-pressed people whom we want to be compliant with rules and regulations? The message from today's meeting is that Ministers past and present have operated for years under the watch of a Department - the heavy hitters and permanent government - which knew about the problem and allowed it to go on. That is wrong - very wrong.

I am not being political about the matter and I am not pointing my finger at the Minister and Minister of State present. I am talking about past Administrations as well. I am also talking about the permanent government which oversaw the matter for many years. How can it be explained to the public? How can one get it across to the public that it is okay for the Department of Health to operate a scheme illegally but the rest of the population must be compliant no matter what sector they belong to? If one is in the PAYE sector, one must pay taxes. Farmers must comply with everything. God knows, farmers have their hands tied behind their backs from when they get up in the morning until they go to bed at night complying with EU regulations and Irish departmental regulations. They will hear this story being broadcast loud and clear that the Minister and Minister of State told us here today that they knew it happened, knew it was illegal and do not dispute what the Ombudsman has said. They know they are operating illegally but the reason given is they do not have the money. On the next day that somebody arrives at my clinic because they are in trouble, I will agree with them that they are in trouble but tell them they are okay because they have no money. That is some message to give people. I am shocked. The matter came to the attention of the committee and the Minister of State told the committee that they do not have the money. That is not good enough.

We must find a solution and I am more than willing to put my shoulder to the wheel to help. I shall return again to the Minister of State saying they do not have the money. Where do we go from here? We must be clear. We cannot say to the people who are already in the scheme that they must leave it in order to cater for others. One option is to divide up the money thus ensuring everyone receives a smaller amount but it is spread further. Another option is to follow Deputy Boyd Barrett's suggestion to remove the constraint of working within a certain pot of money and enlarge the budget.

How easy will it be to do that? The Minister will have to approach the Minister for Public Enterprise and Reform, Deputy Brendan Howlin, and the Minister for Finance, Deputy Michael Noonan, and they will not be too welcoming. What has the Minister said about this at Cabinet level? What does the Taoiseach think of the Department where the Minister is the head honcho? Does he agree with this illegal method of operating under his watch? What has the Minister for Finance said about it? Does he think that because the Minister is operating illegally a change should be made in the budgetary constraints and that more money should be made available so the scheme can be operated properly, fairly and equally, which obviously must be done?

There are four or five options for getting around this. The one thing I must return to, and I do not like to be too political about everything, is the permanent government. How did its members let this happen for so long without admitting that this is wrong? It should not have been the Ombudsman pointing this out. The permanent government should have pointed it out. When the Minister of State, Deputy Kathleen Lynch-----

I must stop you, Deputy. I have given you plenty of latitude.

-----and the Minister, Deputy Reilly, took over they should have been told immediately about the situation and asked what to do about it. Did that happen? What has been said in Cabinet about this important issue?

There is no way anybody in the Government, including myself, Deputy Kathleen Lynch and Deputy Alex White, thinks it is okay to be in breach of the law. Part of what we hope might arise from today is that perhaps with the fresh eyes Deputy Peter Mathews mentioned we will get additional insight into how we can resolve this. I am aware that farmers go through a tough time and that things are tough at present. Each year they must deal with the weather and the market and they must operate within regulations. As the Deputy and I know, the law changes and sometimes that has unforeseen implications. People are often given time to become compliant.

I do not dispute, and never have disputed, what the Ombudsman has said or her findings. However, I keep returning to the difficulty we have. We are dealing with taxpayers' money on the one hand and, on the other, a group of people whose need is clear and obvious and whose independence in many cases is dependent on this. We all acknowledge what independence means, as opposed to having to depend on somebody else. We want to facilitate that for people where and when we can. We are trying to expedite an extraordinarily complex and difficult issue. There is also the fact that if we were to expand this in its current form, it would obviously have enormous consequences given the funding we have in the health budget. We do not have a huge amount of money that can be taken from elsewhere within the system. If we do that, it will have a negative impact. The country's budget does not allow us to take it from outside the system. I realise others will have a different view on that, and that is fair enough. However, the reality we must deal with is that the money we are spending every day on health is borrowed money and comes with terms and conditions.

I am being very frank. We are here as much to seek help on how we solve this problem as to tell the committee how we will solve it. As Deputy Kathleen Lynch said already, if it were easily solved, we would have solved it some time ago. It is extremely difficult. On the one hand, we must act within the law and within our budget while, on the other hand, we do not wish to have a negative impact on those who have this grant and for whom it is such an integral part of their ability to live an independent life at home. I hope the committee will accept our bona fides that we want this resolved and we want to do it with full input from all quarters, most particularly from those who use the service, with regard to how the moneys we have can be best used to support them while still acting within the law.

What about the questions the Minister did not answer?

What questions?

I asked about the permanent government. Did the officials bring it to the Minister's attention and at what time? I appreciate the principle of Cabinet confidentiality, but the Minister must be able to give us a view of what has been discussed by the Government at different levels. I accept there are constraints on what the Minister can say about what was said around the Cabinet table. What are the views of the Government on this?

I will answer the last question before letting the Secretary General respond. Clearly, the views of individual Ministers as expressed in small discussions I had with different people about this are not the view of the Government. The view of the Government is the view expressed by the Cabinet and I am not at liberty to discuss what happens in Cabinet, except after it has happened and the Cabinet has made a decision as to what should be made public. I hope the Deputy respects and understands that. I am not trying to be evasive. They are the rules that govern Cabinet conduct.

Dr. Ambrose McLoughlin

I assure the Deputy that the Department of Health has serious regard for the legal rights of people with disabilities. We are informed by the national disability strategy and the Disability Act 2005. We consistently seek to put their rights at the forefront of our policies and their implementation by the HSE. The recently published value for money and policy review of disability services puts the implementation of new person-centred approaches to service delivery at the centre. We are concerned about our clients and we want to be helpful and supportive of them. Unfortunately, the evolution of specific aspects of policy and their implementation has not always been consistent with wider legal development, and legacy issues can arise from time to time. In that regard the points made in the document, Too Old to be Equal? A Follow-up, about addressing the upper age limit for the motorised transport grant in 2008 and its implications for the age limit in the mobility allowance scheme are noted. However, in addressing these issues the Department has had to have regard to the best use of available resources and to ensuring that those resources are targeted at those most in need of assistance, including people with disabilities who have mobility and transport issues.

There have been major developments since the introduction of both schemes, which I believe are relevant to the discussion: free public transport for people with disabilities and a companion; improved accessibility of public transport; tax concessions for drivers, passengers and voluntary groups; a rural transport programme that provides a total of 1.2 million passenger journeys annually; funding from the State for Vantastic and similar schemes in the Dublin region; transport provided by voluntary service providers funded by the HSE, St. Michael's House, the Irish Wheelchair Association and Muscular Dystrophy Ireland. There has been an evolving service environment, to the benefit of people with disability.

We have a difficult challenge here and we are working to try to solve it. However, it is not simple, and we will be happy to take the advice of this committee and, indeed, the Ombudsman on this matter.

With regard to what Deputy Healy-Rae said, I consider this a good day for this Government. This is the first time this committee has met to deal with something like this. It means the Ombudsman has a committee that can take her genuine concerns and act upon them. People talk about the things that have not been done by this Government but this is one reform that was promised and we are here delivering on it, although clearly, none of us would wish to be here. None of us would wish to be having a consultation with the Department of Health about illegal operations or activity by the Department.

I remind the committee of what the Ombudsman said when she appeared before the committee. She said: "I feel I should inform the committee that the Department of Health has a long history of, to put it mildly, carelessness about the law, and this has been the case irrespective of which political party or coalition has been in government. My predecessor Ombudsmen and myself have seen this at close quarters and I would like to recall for members of this committee just three examples of this carelessness." She went on to cite the nursing homes support scheme and the health repayment scheme.

Already, both schemes in their illegality have cost the State €506 million, a not inconsiderable sum. Some 850 people are taking High Court proceedings against the HSE in respect of the Who Cares? scheme. The Ombudsman said: "I noted that there appears to be an approach of intentional delaying tactics so as to delay cases coming to hearing." On all fronts, these are serious statements made by the Ombudsman. They are related to the two issues but separate. I am delighted to hear the Department of Health will put a new scheme in place. The Minister of State, Deputy Kathleen Lynch, has always shown her concern for those with disabilities. It will take time but I would like to know the timeline. The Minister referred to six months, which is optimistic, but the Ombudsman would be delighted with a six month timeline given the delays.

I would like to ask the Secretary General and the Minister what they think of the observations of the Ombudsman in December when she referred to the carelessness about the law and why we have no money if we have spent at least €500 million compensating people in the courts. What are we doing spending money in the courts when we could spend the money on citizens who need the services?

Dr. Ambrose McLoughlin

The issues here are very complex. I have read the Ombudsman's report very carefully and I reject the statement that there is a history of carelessness. These are complex issues. While I do not want to get into every scheme, if the committee members want to, I can go through them. When laws are drafted and enacted, unforeseen challenges can emerge and unforeseen circumstances arise. The critical issue is that the Department responds. I have been Secretary General for a few months but I will take this extremely seriously. I assure members that my predecessors also took this seriously, certainly in the context of the two issues we are dealing with. These matters were comprehensively dealt with in so far as they could be but they were complex. I assure the committee that we will be happy to take the advice of the Ombudsman.

Dr. McLoughlin interrupted himself. Is he saying he rejects the statement of carelessness?

Dr. Ambrose McLoughlin

I reject the statement of carelessness. I am expressing a view, as Secretary General, that these are complex issues and are not easy to resolve. If they were easy, they would have been resolved. My immediate predecessor had been dealing with these issues. I refute the allegation and I am quite happy to go through some examples if members wish.

Given the gravity of the matters raised by the Ombudsman, it is our responsibility as members of the committee, having invited the Secretary General, to give him the opportunity to give us the benefit of his thoughts.

Dr. Ambrose McLoughlin

The Ombudsman refers to the 1993 subvention regulations and the assessment of the means of adult children. At the end of her remarks, she acknowledges that the wrong had been put right and that compensation was paid to those affected. In the context of the Travers report on wrongful charging, she gave an outline of the report and the history of the wrongful charging of public patients in long stay care. Once again, she acknowledges the steps taken to address the situation, notably the establishment of the health repayment scheme. On both issues, I agree the State erred and mechanisms were put in place to right the wrongs of the past. These issues are historical and have been well aired at this stage. People are well aware of them.

The third issue is the report, entitled Who Cares?, published in 2010. I do not agree with the fundamental position advanced by the Ombudsman. She stated that, since 1970, health boards had an obligation to provide long stay care for older people. The Department of Health and the many Ministers who have served in the Department since then have never agreed with that position. The essential argument made in the Ombudsman's report is that statutory duties imposed on health boards and the HSE under the Health Act 1970 in respect of inpatient services including nursing home services, are not subject to resource limitation. Adequate resources have never been provided to honour these obligations in a transparent and accountable way. The Government is not aware of any country in the world where health and personal social services are provided without some form of prioritisation, which reflects the reality of resource limitations. The reality is that access to health services has always been determined by a combination of clinical and other professional judgments within an overall resource availability envelope. Although people may be eligible to receive inpatient services under section 52 of the Health Act 1970, any entitlement to receive the services in a particular case has always been subject to, inter alia, the availability of adequate resources. The obligation to provide services prescribed in legislation enacted by the Oireachtas is clearly subject to the resources made available by the Oireachtas to provide those services. The Ombudsman has clearly misunderstood and mischaracterised the position of my Department and the requirements of legislation enacted by the Oireachtas in this regard. The Ombudsman has also failed to recognise that it is a matter for the Government to determine the manner in which resources are to be prioritised and allocated.

The Department has also expressed serious concern about the Who Cares? report and the manner in which it was undertaken. One of the most seriously and fundamentally untrue allegations in the report is that the Department refused to co-operate with the investigation by the Ombudsman. As shown conclusively by the correspondence published by the Ombudsman and by the Department, we always made it clear we were fully willing to co-operate with any investigation by the Ombudsman conducted within the parameters of the Ombudsman Act 1980. I think I have answered the Senator's questions.

Can I ask for clarification?

Very briefly, because members have waited patiently.

Is Dr. McLoughlin's statement in the public domain or is it being made here today?

Dr. Ambrose McLoughlin

It is a statement I am making today. We have dealt with the issue. Senator O'Keeffe made allegations that my Department was being careless and I have dealt with the issues in a fair and transparent way.

I am sorry for intruding but the allegations were made by the Ombudsman.

I am about to clarify the matter. Senator O'Keeffe stated that the Ombudsman had made the allegations.

We are here because we were appointed on behalf of the Ombudsman and it is our duty to raise these matters with the Secretary General and to hear his response. I am grateful for his response. Given the gravity of the response, I ask the Chairman for a copy of the statement. We may have to return to the matter. This matter concerns the Who Cares? report. There is also the matter of the money spent on the other two cases, amounting to €506 million. I am assuming these are the correct figures.

We will ask Dr. Ambrose McLoughlin to circulate a copy of his response.

Dr. Ambrose McLoughlin

I am happy to do so.

I hope the committee can return to the subject at a later stage. It is slightly to the side of the other two matters but is included in the statement of the Ombudsman in respect of both matters.

When we receive the response from Dr. McLoughlin we will deliberate upon it at our next meeting.

Does the Minister have a comment on the cost of those cases in court? In respect of those two schemes, that is exactly what we do not want. None of us wants anyone to end up in court. The money we have should be spent on the service.

I think the committee is aware of my statement on the money spent in the court on litigation and legal fees. It should more rightly be spent on those who need the services. I concur completely.

I welcome the Minister and his officials. I am a relatively new member of the committee and one of the first presentations I heard was the report of the Ombudsman on these schemes. It hit the pit of my stomach and I wondered what committee I had gotten involved with. The Secretary General said that this has been seen before but two points must be made about the announcement today. It is the right thing to do and it is patently clear that we could not keep operating these schemes as they have been operated. It is also a distressing day because the implications of the business of the committee today will be felt in every corner of the country by the most vulnerable.

Whichever way one slices and dices it or speaks of the legal, moral or ethical issues, first and foremost we should consider the benefits these schemes gave to the people who most deserved them. That is critically important. I note the Secretary General's response. Everybody in this State is equal but we are not all the same. Sometimes people get completely wrapped up in equating equality with identity. We have seen evidence of this in the way female and male drivers are treated because of the European legislation we have had to enact. Is it fair that women drivers, who in the past paid lower insurance as they were considered a lesser risk, must now pay the same premiums as men? I am trying to be constructive but I think we must find ways to target the different schemes. It was correct at the time and is correct to try to provide services for those with disabilities, such as transport and mobility services for those in greatest need. The question is how to target services at those who need them most under the Equality Acts. I hope the advocacy and representative groups of the beneficiaries of the scheme will get a hearing. I would then look at the experience in other jurisdictions as we cannot be the only country in the world that has issues such as this. We are looking for solutions within tight parameters. It is obvious that this has been explored ad nauseam in the Department. We must look outside the box for a solution. Does equality legislation need to be looked? That is difficult to deal with but it goes back to the point that if everybody is entitled to a mobility allowance, some will be in desperate need of it but for others it will be a payment into their bank account. At times, the right way to proceed is different from the legally correct way to proceed.

I reiterate my call to the Minister to consult the advocacy and representative groups in this regard. The sooner discussions take place with them the better.

I thank the Deputy for his contribution, which was very positive. I should have said it at the outset but this meeting was never meant to worry the section of society that relies on this payment. If we could have found a solution to this issue, we would have. It is because we are conscious of the needs of people and how much they rely on particular grants that we have been so careful about it. The good thing about engaging a person on a short-term contract to examine a scheme is that this is his or her only focus. I think officials and Ministers are pulled this way and that and it is very difficult to devote the necessary time to finding a workable resolution. We have people in mind and, whoever is chosen, this scheme will be his or her single focus. We hope he or she will come up with a solution to this very difficult issue. I am sure the person chosen will look at what happens outside the borders of this country.

I welcome both the Minister, Deputy Reilly, and the Minister of State, Deputy Lynch.

I am not in favour of global schemes in any shape or form because, in my experience, firing money at a problem has not resolved the problem for the individual. When one considers that to avail of these schemes one must have the disability and then undergo a means test, that is restrictive. I think the officials have overestimated the numbers. If one considers that few people over 66 years are working, the number who are trying to get transport to work is not that large. May I request that committee members receive information on the level of means necessary to qualify for the grant in the first place and the description of a severe disability? I understand the spirit of both schemes. My daughter has a travel pass and avails of care-accessible transport. That is quite sufficient for her needs and she does not need a mobility allowance or any other allowance. I agree with Deputy Harrington that it is critical that the advocacy and disability groups are consulted as to what is best. I think we must drill down to find what is best for each individual client. A global scheme does not work. I could give the names, although I will not do so publicly, of 20 different friends of my daughter each and every one of whom has a different transport need. If we are to put a scheme in place, I think we need to get down to considering individual need. As a partial solution, we could certainly extend the car renewal period from three years to five years. I would have no difficulty with that given the quality of the cars available. I know that only a small amount of money is at stake, but it is a step in the right direction. However, we will have to put more money into the scheme to make it work for those with a disability.

I know for a fact that those who shouted loudest in the past got the benefit of these schemes. Perhaps it is time to review the recipients of all schemes, in particular in the intellectual disability area. What I would like to see is the development of a person-centred scheme. The Secretary General rightly pointed out that the information on different schemes in the community should be disseminated. Things have changed dramatically since the introduction of the schemes and now young adults with an intellectual and physical disability are availing of the scheme. I know of up to 23 young adults coming out of Shannon every morning on those schemes. Should any one of them have a mobility allowance? Absolutely not. Should any one of them have a motorised transport allowance? Absolutely not. These young lads are mobile; they may well have an intellectual or physical disability, but they are well and able to travel with their colleagues on the buses. If we were more person-centred in seeking solutions, we could resolve the problem. I do not think the current allocation is sufficient but we certainly do not need hundreds of millions extra to come up with a solution. We need to be more innovative. We could further support the rural transport schemes. It is a no-brainer to extend the period of car renewal.

I thank Senator Mulcahy for his contribution. The motorised transport grant for those aged 66 years and more is not a difficulty because once they have been awarded it, it continues on. The difficulty arises with the mobility allowance. The national disability survey has found that upwards of 59,000 people over the age of 65 years have either a lot of difficulty in walking for 15 minutes or could not do it at all. It is the growth in that number we are talking about.

I agree completely with what the Senator is talking about. He is quite right to say the solution to this problem needs to be local rather than national. That is why we need someone with the sole remit of dealing with this. Ms Hartigan will tell the committee about a particular project that is achieving very good results. It involves a combination of schemes, such as the rural transport scheme. The Vantastic scheme is being driven beyond the Dublin area and into other urban centres. We have to do all of that type of thing. As it is a multifaceted problem, there has to be a multifaceted solution. One size does not fit all - it never has. We have to take a fresh and different approach. As the Senator rightly said, my experience of people with disabilities means I am familiar with confined public transport schemes such as the specific rural transport scheme or the Vantastic scheme. It is about providing for a social outing as well as everything else. The need for contact with other people is hugely important, especially for people who have difficulties with socialisation anyway. I agree completely that we are going to be looking at those things. There is value in having someone whose only job is to look at how this can be achieved.

Ms Cate Hartigan

The scheme the Minister of State is referring to is the LARITS project - Senator Mulcahy may have come across it - which cuts across the rural transport scheme. It is being operated by the Department of Transport, Tourism and Sport. It is very much about having a national scheme that is operated locally. It ties in with rural transport systems that are operated by the HSE. As the Minister, Deputy Reilly, mentioned earlier, service providers such as the Irish Wheelchair Association are also involved. It fits very well within the mainstreaming policy for people with disabilities. People need local solutions to local access problems, essentially. I think the project has operated a couple of pilot schemes so far. It is still at a reasonably early stage. The most recent feedback we have received suggests that it is operating very well. It uses conventional and non-conventional transport systems. Not only does it address local need, but it also ensures that people with disabilities are not segregated from the rest of society. Many people who happen to have physical or intellectual disabilities are part of the ordinary lives of their local communities. Rather than isolating them, we need to make sure they are further integrated. That can involve ensuring such people live together rather than in isolated accommodation. This project ticks a number of the boxes in our disability strategy. It provides local solutions for local people. The national framework ensures there is some measure of access equality in all of these things. It is in its early stages, as I have said, but it is looking pretty good so far. There is a huge level of co-operation in the areas where it is in existence.

I welcome the Minister, the Minister of State and the officials. Obviously, this is one of the times when we get to see the chickens coming home to roost. It is very sobering to hear that the financial state we are in means we cannot actually do this, as has been explained. Our budgetary constraints mean that we are under a great deal of pressure across many headings in the Department of Health. It is one of the toughest portfolios in this regard because it is demand-led. We want to look after people who are sick, dying or disabled.

The problem has been described as having been going on for quite some time. Dr. McLoughlin said he has been in his position for just a few months. Can anybody else tell us why the issue of equality was not addressed when there was money in the country, as part of the operation of this scheme by the Department of Health? It seems that money was found for everything else at some stage - I do not suggest that was right either - but this was not funded. What was the rationale that allowed this to be ignored for so long? The Equal Status Act came into being when there was money in the country.

I am not quite clear on the interaction of the mobility allowance. A number of my constituents who have disability issues are having difficulty getting to medical appointments. A lot of begging and pleading has to be done before they are transported to essential medical appointments. Many of the people in question live in rural areas. I applaud the rural transport scheme and all the other initiatives. They work well for people in certain demographics and certain circumstances. It is difficult to understand why people with disabilities who cannot get to medical appointments have to ask Deputies to make representations for them. I do not know why we do not have a better system. I know there have been cutbacks in the ambulance transport service. I am sure that can be done more readily in some areas than in others. People with disabilities who are in particular hardship are stressed because they do not know how they can make their appointments. I wonder about the link between the two schemes. It should be pretty essential. If it is possible to accommodate people on the rural transport scheme when they are collecting their pensions every week, why can they not be brought to their medical appointments?

Two Deputies raised the possibility of raising more taxes. We have probably gone past that point now. In all fairness, the property tax is being introduced. People are being pinched in every direction. Many of the rich people we hear about have big houses with mortgages in negative equity. They are just as pressed as anyone else. I do not know of many sectors in our society that are not pressed. There is a tendency for one sector of pressurised people to look to another sector of people to see who has it easier and who can be curtailed further when more cuts come around. The idea that people are not paying enough through direct or indirect taxes, which is constantly repeated, is a daft one. I would like to know who these wealthy people are, for example, in my own town. It needs to be analysed. I do not know who they are. Maybe people are referring to those with the trappings of wealth. If so, I suggest that those trappings could be causing a lot more misery than happiness at the moment.

The Deputy's question has two parts. I am sure the Minister will want to respond as well. I agree with the Deputy that one size does not fit all. Different issues can arise when people have to find various pieces before they can attend medical appointments, etc. This type of transport is not needed on every occasion to meet the mobility needs of these people. It is clear that some help is needed in respect of journeys of a certain distance. It strikes me that this applies to various budgets in many areas, including this area. The HSE is paying huge sums of money for taxis for vulnerable children. The point I am making about the sort of budgetary control we do not have applies right across the board. People can talk all day long about those who expect us to raise taxes. This is the Department of Health. We do not control the types of taxes that are imposed, or whom they are imposed on. We have to work within our budget. It is as simple as that. The Secretary General is the Accounting Officer. We have to work within our budget. Everyone saw the difficulties we had last year when those budgets were not kept to. We desperately hope to keep to them this year. People can talk all they like about raising additional taxes and securing extra budgets. We do not have those powers. We have to work within the constraints we face. That is where we are trying to find a solution.

I thank Deputy Mulherin for her contribution.

The issue of medical appointments was raised. It may come as a surprise to members of the committee that I am considered to be a Dublin Deputy. I have a large rural hinterland whose inhabitants find it extremely difficult to make their way to the hospital and would prefer Beaumont. There is no direct public transport. If one can get to the main road, one will be able to get a bus into town and then a bus out of town to get to the outpatients department and endure the same on return. The Vantastic initiative is hugely welcome and one that we want to support and expand. We like to be able to provide a service that ensures people can attend the outpatients department. It is stressful enough having to go to hospital without being stressed about how to get there. That is a huge issue. There is also the issue of people who do not arrive at outpatients because they have difficulty getting there and it is so long since they got the appointment they have forgotten. We have asked hospitals to use the text to ask people the week before if they will attend and remind them again on the day.

The Deputy asked about budgets and the Minister of State, Deputy Kathleen Lynch, mentioned the overrun last year which was less than 1.8%. Given that we are in an era of ever-reducing budgets and have taken the guts of €3 billion out, that is a reasonable performance, but I would like it to be much better this year. Because of that we have put in place new accounting mechanisms and beefed up our finance and accounting mechanisms with the addition of expertise by individuals in the four regions in the Department and in the payments board. We will have confirmation in a couple of days as to what the profiling is. This is something we could not do in the past; we had to wait until the middle or near the end of February to know what had happened in January. Sometimes it was March or April by the time one found out and by then the horse had bolted. This year, however, the position will be different.

Returning to the substantive issue of the whole area of disability, the Minister of State, Deputy Lynch, the Government and I are absolutely committed to the principle that the money follows the patient and in the area of disability that means individualised, personalised budgets. In a general way we need to move away from what the service providers want and towards what service users need, and to have them involved in the process of determining and dictating the services that should be available to them. That is an issue on which the Minister of State and I look forward to making progress.

I thank the Minister. I will allow-----

I asked a question about the rationale for not funding the area before when money appeared to be available.

Dr. Ambrose McLoughlin

I thank the Deputy for the question. The file shows that the Department of Health had originally signalled its intention to review the mobility allowance in late 2009. I can assure the Deputy that since that time, and prior to that in 2008, very significant efforts were made at official level to deal with the issue, but it is difficult and complex. I reassure the committee that we acknowledge the position of the ombudsman. The ombudsman carries out an important and valuable function. We will try to improve the relationships between the ombudsman and the Department to ensure we can get on with the business of assisting the patients and the public we want to serve and rebuild a new relationship. These are difficult technical issues and I ask Members to understand that the Department has a deep-seated commitment to resolving them. We understand the complexity of them and we understand the importance of the ombudsman's report. I assure the Chairman I am taking the issue extremely seriously.

I understand the issue was flagged in 2005, notwithstanding the fact that it has continued for a long time. Is the Secretary General saying there was no response in 2005?

Dr. Ambrose McLoughlin

In relation to the mobility allowance, prior to that time - I did mention 2008 but I can check with Ms Fitzpatrick - the issue has been under observation for some years. The Deputy will appreciate that because of the nature of the issues the Department did not finalise its position until 2009. Is not that correct?

Ms Geraldine Fitzpatrick

That is correct. Before that time there were wider Government issues around whether the Department of Health should be in the business of making payments that are in the nature of allowances at all. The HSE is not equipped to pay income or allowances on a monthly basis to people. That is not part of our core competency. The community welfare officers were transferred to the Department of Social Protection with that form of allowance that used to be part of the old health boards. The administrative systems and also the policy on people with disabilities were evolving during this period, when they were not regarded as a sector apart. There was also the whole principle around mainstreaming. The question we are trying to grapple with is not how to pay supports to all of these people but, in the context of mainstreaming, how to provide a transport system that people with any type of disability, whatever their age, who require the system can access.

Deputy Peter Mathews asked about the limitations. One of the key limitations is the figure of €10 million and another is that it must be done in a fair, equitable and legal way. That is the question that appears clear in its import but when one tries to tease it out that is where the difficulty arises. We need to arrive at solutions, as the Minister of State said, that will be at local level, using all of the systems currently in place. For example, last year alone the Department paid €400,000 to various organisations for specialised transportation for those with disabilities and older people. All of the individual supports need to be coalesced into something meaningful that fulfils a policy of mainstreaming in order that people with disabilities, whatever their age, can access them when they need it. It also takes account of the fact that people get special assistance if they need to go to hospital. There is special transport for people to access education. Many of these supports are in place. The challenge is to see what coherence we can bring across the entirety of all those supports.

I shall allow three brief supplementaries before wrapping up. We have had an extensive session, running to an hour and 50 minutes, at this stage.

If there was an easy solution I would be for putting it forward. I will think about it.

We are all agreed on that.

If there was a cost-neutral way of dealing with it-----

That would be great.

I have to be honest. I commend the Government on the establishment of this committee because it is a positive development and it is a good day for democracy that an issue such as this can be brought forward. However, there are consequences to such things, and this is one of them. As much as I want to be sympathetic to the plight, is it not the case that what the Minister of State is telling the committee is that the budget cannot be broken but the law must be broken? That is really what she is saying. I ask her to confirm that the budget cannot be broken and, therefore, the law must be broken, and that this will continue for at least another six months. Is it the position that the Minister of State will continue to break the law - I know she does not want to do it - for six months and deny people their rights and entitlements under the Equal Status Act because looking at the budget is not an option? That is not acceptable. That is on the legal side. I think she is trying to square a circle that is difficult if not impossible to square. Deputy Harrington said that perhaps we need to look at the equality legislation.

I can see, because of the thinking running through this, why one might think that, but it is very dangerous to believe that the way to resolve this is to begin to unravel equality legislation. I urge the Minister of State not to even consider doing that.

It seems the Department is faced with looking at changing eligibility criteria. This is serious, because that implies that some of the people who are currently eligible for grants do not actually need them. It is a serious road to take to suggest that might be the case. Is it not a matter of equality that if some fully able people are allowed to drive cars, those who are disabled should get grants in order that they can drive cars also? The use of language such as "mainstreaming" and other jargon does not get away from the fundamental fact that people with disabilities have the right to drive cars and should get grants for that. I do not believe we should try to unravel that. I put this to the Minister of State, but I will think further on the issues. First, is it acceptable for the Minister of State to continue to break the law for the next six months? Second, can she seriously tell us there is any other way of dealing with this other than by looking at the budget caps? I do not believe there is.

We will take a brief response on that before I open up the discussion to others.

It is a pity the question was not very brief.

The Minister of State may take her time with her response.

I will be brief as we are all probably feeling a little tired. When we get someone in to look at this, the comprehensive review required will be considered and if that can be done in a shorter period than six months, we will be very happy. We need to emphasise again that this should not be an exercise that will drive fear into people. We must be careful about this because people are watching what is happening and are very conscious of the issue. We need to reassure people that we are struggling to find a solution to the issue, but we are convinced we will find one that is both compassionate and that will ensure people who need a service will have it available to them.

I thank the Minister of State for her response. I have been trying to do the maths here while we have been discussing this and I contend that the Department is over-egging the situation with its figures. We have an Irish term - scéal chailleach an uafáis - and I think we have been given that story with the figures, because based on them, the maths do not seem to add up . On average the mobility allowance costs €2,500 per annum per individual and the Department estimates 58,800 other people would be eligible for that under the criteria, which comes to €147 million. Under the motorised transport scheme, the average - based on the Minister of State's figures - is €4,333 per person per annum-----

The Senator has that the wrong way around.

One person at a time. Allow the Senator put his question and then we will have the response.

There are 300 on this scheme per year, receiving €1.3 million. If we divide €1.3 million by 300, we get €4,333 per individual on average. If we multiply that by the 80,950 the Minister of State estimates are eligible, this amounts to €82 million. The figures provided to us were €200 million and €100 million, but we are still short of that - at €229 million - based on the Department's figures. I reckon those figures are based on the worst case scenario, based on the highest grant that would be payable. The point I am trying to make is that when we add up the figures, they seem to be very much towards the high end of the scale. The Secretary General also mentioned the changes that have taken place with regard to policy, the rural transport scheme, the Vantastic scheme etc. Surely, not every person who is eligible will avail of the scheme. Therefore, I contend the Department is over-egging the cost of the potential solution. We need more realistic figures on the possible solution.

This is an interdepartmental problem, affecting transport, finance, social welfare, health, etc. Has an interdepartmental working group been put together to consider a solution and if not, why not? My final question relates to a systemic issue. One of the roles of this committee is to consider problems of a systemic nature. When a Minister comes into office and is given a brief, is he or she told of the contingent liabilities in the Department? If so, was this issue a contingent liability that was highlighted to the Ministers when they took office? If I was a director of a non-profit company and was doing my annual accounts, I would be obliged to include a contingent liability if there was a danger somebody would take a legal case against me. There is a potential case here of up to at least €229 million, according to the Department's figures. Was the Minister of State made aware of that? Is it part of the departmental process that when a Minister is briefed, contingent liabilities such as this are flagged? Was this one flagged?

Ms Geraldine Fitzpatrick

Every Minister, on appointment, is given a full briefing from all the different units in the Department, including on any flagged issues. With regard to contingent liabilities and the question the Senator asked earlier, we have never paid compensation in regard to this matter. We cannot estimate anything like that because it comes down to how long is a piece of string.

The Department's figures could -----

No interruptions please.

Ms Geraldine Fitzpatrick

We estimated the cost of extending the schemes and would be happy to make those figures available to the Senator and to show how we calculated them. We are holding back in that regard and will send them to the committee.

Can I suggest that for the benefit of the committee, the Department could provide a better breakdown of how it arrived at those figures?

Ms Geraldine Fitzpatrick

Absolutely. We will provide the committee with the full work-up of how we arrived at them.

To clarify, was an interdepartmental working group put together to look at the issue?

Different groups of officials are talking to other relevant Departments, but there is no actual working group.

I referred earlier to that last point. If we know the facts and the low, medium and highest estimates, we have a sensitivity analysis of the exposure. There is an irony with regard to this issue. The mobility allowance was introduced in 1979, when in public thinking and society in general we were becoming more conscious about giving people with disability the chance to go to work and to have an occupation. Buildings were refitted with ramps and lifts to provide for people with physical disabilities. The introduction of the mobility allowance was well motivated. Since then, a purer definition of equality has come in and it has trumped and leapfrogged over the initial moves to make society more equal with allowances. This is a stricter definition and we cannot avoid facing it. We are doing that bravely and well today.

The conundrum we face is the overall resource and budget constraint for the Government. We are trying to ensure a fairer distribution and support to people who need it - people between the ages of 16 and 66 who need to be able to go to work and have an occupation. We must address this, but that brings us to two critical issues. First of these is the current debate for bank debt-liabilities write-off and, second, the need to reconsider the need to raise national recovery resources from high incomes and corporation profits, levies and taxes. Ironically, in the past four years - since 2008 - the export drive we talk about-----

I must ask the Deputy to get to the question because we have been on this for over two hours.

The question is could the Department bring these considerations back to Government and officials in the Department so as to reflect a fairer society?

I do not think the Deputy expects an answer to that. We have noted it and when the scheme is devised, no matter its consequences, it will have to go to the Government.

I thank the Chairman and the committee.

Has the Minister received legal advice on the implications of the ombudsman's findings? Deputy Harrington mentioned equality legislation. I am mindful that equality legislation in this State is also within an international context. Has the Minister considered the international implications of the ombudsman's ruling?

We did receive legal advice. We have acknowledged that legally the ombudsman is correct in her assertions in terms of this particular scheme. I acknowledge that the ombudsman has an important job to do and I do not seek to undermine that job in any way. I believe the more advocates we have for vulnerable people in our society the better.

On the equality legislation and the international implications of the ruling, I do not have an answer to hand but will make inquiries in that regard for the Chairman.

I thank the Chairman and committee members for the manner in which this meeting was conducted. We have tried to make as clear as possible that we are seeking a solution, which solution must be in compliance with the law, realistic in terms of affordability and, most importantly, assist those who need support to maintain their independence in doing so. That is our primary goal.

Would the Minister of State like to comment further?

An exercise such as this is useful in that it gives people an indication of the reasons that lie behind a decision not being made. It is akin to putting a glass panel against a particular difficult problem. This has been a useful exercise. I appreciate that people will think further about this later. We have been grappling with this issue for a considerable time and are therefore aware of the difficulties that arise. If a solution is proffered, we will be aware of the additional difficulties that come with it. It is hoped that members of the committee have gained something from this useful exercise. We may not have solved the problem today but we have given people an insight into the difficulties in a particularly difficult area. I thank the Chairman for this opportunity.

I thank the Minister, the Minister of State and their officials for meeting with us today. We appreciate the information they have given us. The committee will reflect on the issues informed by the ombudsman's earlier presentation to it and the exchanges here today and will report its findings, conclusions and any recommendations it considers appropriate.

The joint committee went into private session at 6.15 p.m. and adjourned at 6.20 p.m. until 4 p.m. on Wednesday, 13 February 2013.
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