Seanad Éireann díospóireacht -
Thursday, 5 Nov 2015

Vol. 243 No. 3

Commencement Matters

Nursing Homes Support Scheme Eligibility

Senator Colm Burke

I welcome the Minister of State, Deputy Kathleen Lynch, and thank her for the work she has done on the fair deal scheme. Last year, in particular, when there was a substantial backlog associated with the discharging of people from hospitals, she and the Minister got involved and came up with additional funding. As a result, the waiting time for admittance to nursing homes has been reduced from 16 weeks to less than four. That is a very welcome development.

The issue I am raising, with which the Minister of State is very familiar, is especially related to people in the farming community. I am dealing with a number of cases in this regard, one of which concerns a widow who developed Parkinson's disease and who is now in full-time care. Her family is paying over €2,500 per month to the nursing home. The farm is not generating sufficient income for someone to make a living from it. The land now has to be rented, rather than farmed by the family.

The three-year rule is the one that particularly affects them, and this will continue ad infinitum. There are costs associated with the fair deal scheme. Almost €1 billion per annum is being provided, which is a substantial sum out of the health budget. However, people in the farming community in particular feel they are being penalised, and I hope we can work towards changing it. I would welcome the Minister's comments.

Minister of State at the Department of Health (Deputy Kathleen Lynch)

I understand the Senator's concerns well, and we considered them as part of the review. The woman credited with creating the fair deal scheme, Geraldine Fitzpatrick, was buried last Saturday week. I always feel at some stage I will read into the record of the House her last note to me, in which she urged me to continue the way we are going and ensure that the care of the elderly never falls entirely into private hands. Even when she was unwell, she was still concerned about how we treat older people. She was a remarkable woman and will be greatly missed.

I thank Senator Colm Burke for raising this matter. The nursing homes support scheme provides financial support towards the cost of long-term residential care services in nursing homes and ensures long-term nursing home care is accessible to everyone assessed as needing it. By the end of 2015, the scheme will have supported approximately 23,600 people this year. I am pleased to say the Government increased the budget allocation for the scheme for 2016 by €66 million - from €873.8 million in 2015 to €940 million, almost €1 billion - as the Senator said. Under the scheme, an applicant will contribute up to 80% of his or her assessable income and a maximum of 7.5% of the value of any assets per annum. The State will then pay the balance of the cost of care.

It is important to note that an applicant's principal private residence will only be included in the financial assessment for the first three years of his or her time in care. This is known as the three-year cap. The scheme ensures nobody will pay more than the actual cost of care and contains a number of important safeguards. Where an applicant's assets include land and property held in the State, the contribution based on such assets may be deferred and collected from his or her estate. This is the optional loan element of the scheme, which very few take up. A commitment was made in 2009 that the scheme would be reviewed after three years. I am pleased to say that the report of the review was published this year. One of the many issues considered is the treatment of business and farm assets for the purposes of the financial assessment. It is important to note that the scheme already contains some provisions which qualify the treatment of income generating assets.

The three-year cap will apply to a person's farm or relevant business under certain circumstances: where the person has suffered a sudden illness or disability which causes him or her to need long-term nursing home care; where the person or his or her partner was actively engaged in the daily management of the farm up until the time of the sudden illness or disability; and where a family successor certifies that he or she will continue the management of the farm. The Senator will be aware of these conditions. The review of the scheme acknowledges that farms or family businesses could face an annual diminution of a capital asset that they depend on for as long as nursing home care is required, and that this can cause real difficulties. Accordingly, the review recommends that the treatment of such assets be reviewed, and arrangements for this are already in train.

An interdepartmental and agency working group is being established to progress many of the recommendations contained in the review of the scheme. As part of this, consideration will be given as to whether a cap should be applied to the charge for nursing home care based on non-residential productive assets which are passed on to a direct family member after, or in the five years prior to, the death of a fair deal scheme participant, and where the new owner carries on the farm or other business as his or her principal livelihood. This working group will be chaired by my Department and will comprise officials from other relevant Government Departments. The group is due to report to the Cabinet committee on health in June 2016. The Department of Agriculture, Food and the Marine would also be relevant, given its wider scope and greater knowledge on this issue.

Senator Colm Burke

I thank the Minister of State for her very comprehensive reply. I am delighted that a review is going ahead. As the Minister of State said, the issue is that the three-year cap applies in the case of sudden illness but not in the case of a gradual illness such as Parkinson's disease. I welcome the Minister of State's response and I am delighted that progress is being made. I hope to keep in touch with the Minister of State about it.

Deputy Kathleen Lynch

In cases in which a farm is a working farm, as in the case the Senator raised, it is unreasonable to expect people to pay ad infinitum or impose an attachment to the asset forever. We must treat these cases differently. We must put safeguards in place and there will be issues regarding land that is not income-generating. I hope the review will come to a conclusion as soon as possible.

Services for People with Disabilities

Senator Tom Sheahan

I welcome the Minister of State. When the Fine Gael-Labour Party coalition took office in 2011, we all knew the state of the State's accounts and that austerity was ahead. At the time, I appealed to the Government to maintain compassion at all costs. I have previously raised the issue of the provision of primary medical certificates to people with Down's syndrome, and I recognised that it was a big ask at the time. However, with the country in recovery and the trajectory of the public finances going in the right direction, I again appeal to the Department, the Cabinet and the Government to seriously consider the provision of primary medical certificates for people with Down's syndrome. People with Down's syndrome will never drive or hold a driving licence, and are totally dependent on their parents and family. I know many people with Down's syndrome. I will give a real account of what life is like for the parents of a four year old with Down's syndrome whom I met during the week. The child, Joseph, has sensory processing disorder, and a psychological assessment found that he had the intellectual capacity of a 13 to 15 month old. He has the verbalisation of a seven month old. He cannot feed himself. Because he chokes, all his food must be liquidised. His muscle tone is on the exacerbated weak side and he cannot take two steps without help. Although Joseph is loved to bits by his parents, like every other child, it is an awful strain on the parents, on their relationship and on the other members of the family unit.

Thankfully, things have improved immensely for people with Down's syndrome. They are no longer, as in the dark days, put in the back room where they never saw the light of day. There are great facilities for them now.

People with Down's syndrome are living well into their 50s now, and sometimes into their 70s and 80s. That is great but I find that every parent of a child with Down's syndrome has to do everything for them, even when they are 50 and 60 years of age. They are always their child. They have to bring them everywhere. They have to bring them to every social outing they go to. They are dependent on their parents. The biggest worry that parents have is what will happen to their children when they die. This would be a compassionate thing to do. They are most deserving of the primary medical certificate because they are so dependent. They will not be able to drive themselves or get to and from wherever they are going by themselves. They are dependent on their parents. It would be compassionate of the Government to afford the primary medical certificate to people with Down's syndrome. I would like the Minister of State to ask Cabinet to give it due consideration.

Deputy Kathleen Lynch

People with Down's syndrome are now living well into their 70s, and almost 80. That is a good thing and is probably because of the advances in medicine. Our understanding, acceptance and tolerance are a significant part of it. If I had a wish for the next Government, it would be for a Department that covers everything concerning disability because it is so scattered now. That is why I am taking this Commencement matter on behalf of the Minister for Finance. The issue does not fall under the Department of Health at all.

I thank the Senator for raising this matter this morning. The Minister for Finance regrets that he is unable to be present due to other business. This Commencement matter relates to the disabled drivers and disabled passengers scheme, which is a tax concession scheme. It is for that reason that I am answering on behalf of the Minister for Finance.

I will first provide a brief description of the scheme as it currently stands. It provides relief from vehicle registration tax and VAT on the purchase of a specially adapted vehicle, a fuel grant related to the running costs of the vehicle and an exemption from motor tax to drivers and passengers with disabilities who fulfil the medical criteria required to qualify for the scheme. The primary legislation authorising the Minister for Finance to make regulations providing for tax concessions to disabled drivers and passengers is contained in section 92 of the Finance Act 1989, and the regulations introduced subsequently to govern the scheme, including the eligibility criteria, are contained in the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations 1994. Currently, to qualify for the scheme, an applicant must have a permanent and severe physical disability within the terms of the regulations and satisfy one of the six qualifying criteria outlined in the regulations. The senior medical officer for the relevant local Health Service Executive administrative area makes a professional clinical determination as to whether an individual applicant satisfies the medical criteria. A successful applicant is provided with a primary medical certificate, which is required under the regulations to claim the reliefs provided for under the scheme. An unsuccessful applicant can appeal the decision of the senior medical officer to the disabled drivers medical board of appeal, which makes a clinical determination in respect of the individual.

The regulations mandate that the medical board of appeal is independent in the exercise of its functions to ensure the integrity of its clinical determinations. After six months a citizen can reapply for a primary medical certificate if there is a deterioration in their condition. The six qualifying criteria are necessarily both strict and precise. They are that an applicant must be wholly or almost wholly without the use of both legs; be wholly without the use of one leg and almost wholly without the use of the other leg such that the applicant is severely restricted as to movement of the lower limbs; be without both hands or without both arms; be without one or both legs; be wholly or almost wholly without the use of both hands or arms and wholly or almost wholly without the use of one leg; or have the medical condition of dwarfism and have serious difficulties of movement of the lower limbs. The scheme and the qualifying criteria were designed specifically for those with severe physical disabilities, in recognition of the significant costs associated with adapting a vehicle for the transport of persons with certain disabilities.

The Minister for Finance frequently receives correspondence from applicants who do not meet the qualifying criteria but feel that they would benefit from the scheme. While the Minister is sympathetic to those who do not qualify for the scheme, he cannot, given the scale and scope of the scheme, extend it further within the current context of constrained resources, which is the point that Senator Sheahan made.

The scheme represents a significant tax expenditure. Between the vehicle registration tax and VAT forgone, and the assistance with fuel costs used by members of the scheme, the scheme represented a cost of €48.6 million to the Exchequer in 2014, an increase of €5.1 million on the 2013 cost. This figure does not include the revenue forgone to the Local Government Fund in respect of the relief from motor tax provided to members of the scheme. In terms of the numbers of claims to the scheme in 2014, there were 4,936 claims for vehicle registration tax and VAT relief, and 12,338 claims in respect of the payment of excise on the fuel element of the scheme.

The Minister for Finance recognises that this scheme plays an important role in expanding the mobility of citizens with disabilities and as a consequence the relief has been maintained at current levels throughout the crisis, despite the requirement for significant fiscal consolidation. Accordingly, while the Minister is sympathetic to the Senator, in the still constrained fiscal environment, there are no plans at this time to expand the medical criteria beyond the six currently provided for in the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations 1994. I am sorry that I do not have better news for the Senator but nevertheless I am sure that the Senator will continue to pursue it.

Senator Tom Sheahan

I thank the Minister of State for delivering the response. As she said, this is only the beginning. The ball has only been thrown in by me here now. I see no reason that the qualifying criteria cannot be expanded to encapsulate and include Down's syndrome. I know people in each category of the qualifying criteria who have driving licences and can drive. People with Down's syndrome do not. It is a mobility issue because they cannot go anywhere without somebody else. People who meet any of the qualifying criteria can get about, so getting from one place to another is not an issue. All of the people in those categories can have driving licences and can drive.

As I said, I will be looking for the qualifying criteria to be extended to include people with Down's syndrome to improve their quality of life. I will give the Minister a passionate letter that I have received from parents about their child, Joseph. In it, they say that everything with Joseph is a two-man job. They also talk about taking part in the normality of life. That is the kind of language they use. It is very true because I know them and they are genuine people. This would make their lives a little bit easier. On that note, I will give this letter to the Minister of State and ask her to pass it on to the Minister, Deputy Noonan. I will be back with this one.

Deputy Kathleen Lynch

Like the Minister for Finance, I regularly receive representations from people, for example, stroke victims and people with acquired brain injury. I have every sympathy but I think the issue is wider than what the Senator has suggested. As I have said already, I am sure the Senator will not let this lie and will be back again. Eventually people are successful in their endeavours.

Electronic Tagging

Senator Mark Daly

I thank the Minister of State for coming to the House to discuss this issue. This is a topical subject on the tagging of people who are out on bail and proposals that those on early release from prison, having served some of their sentences, would also be tagged. Much has been made of some of the incidents that have happened recently in rural Ireland, especially in Tipperary. There has also been an increasing number of robberies taking place in Dublin. The concept of tagging has been discussed as if it is a new concept.

I asked the Minister why she has not invoked section 102 of the Criminal Justice Act 2006, which allows for tagging of criminals. The reason it would make sense is the economic cost of €6.45 per day and that its use in other jurisdictions has seen crime reduced. Some 62% of those released early from prison end up reoffending, with 80% of those doing so in the first year. When electronic tagging or smart tagging was brought in in other jurisdictions, the level of reoffending dropped by 85% to 95%. What I cannot understand is the Department of Justice and Equality talking about bringing in legislation on this when there is already section 102 of the Criminal Justice Act of nearly ten years ago that would allow for the tagging of those who are out on bail. I am merely asking the Minister why the Department is not putting that into effect immediately without having to wait for more legislation to do exactly what is provided for already.

Deputy Kathleen Lynch

I thank the Senator for raising the issue. I am taking this Commencement matter on behalf of the Minister for Justice and Equality, Deputy Fitzgerald, who unfortunately cannot be here today for reasons I am sure the Senator will understand.

I wish to outline the reasoning behind alternative sanctions and the value of supervision as opposed to monitoring. I understand perfectly the argument the Senator makes. Section 102 of the Criminal Justice Act 2006, which I assume is what the Senator is referring to, provides for the electronic monitoring of the restrictions on an offender's movements imposed by a court under section 101 of the same Act. Section 101 provides that a court, which convicts a person of certain offences and considers a prison sentence of three months or more is appropriate, may make an order restricting the offender's movements as an alternative to a sentence of imprisonment. It is only available to the courts as an alternative sanction for a limited number of offences and does not apply, for example, to burglary. The restrictions on an offender's movements may include a requirement for him or her to be in a certain place or places for a specified period or to stay away from a certain place or places. The order may also include conditions as the court considers necessary to ensure that while the order is in force, the offender will keep the peace, be of good behaviour and will not commence any further offences.

The previous Government commenced section 101 but did not commence section 102. To the best of my knowledge, restriction of movement orders have not been used extensively by the Judiciary. The addition of monitoring a person's compliance with the conditions of the restriction of movement order by electronic means under section 102 is not necessarily the most cost-effective way to challenge and change the offending behaviour of a convicted person.

The Government's focus has been on the use of alternative sanctions to promote the rehabilitation of offenders. In that context the Criminal Justice (Community Service) (Amendment) Act 2011, introduced by the previous Minister, made it a requirement that the courts first consider the appropriateness of community service when considering the imposition of a custodial sentence of 12 months or less and extended the possibility of community service to offences attracting a sentence of more than 12 months. Supervised community service is available for a wide range of offences, including burglary, and offers the possibility of holding an offender to account for his or her behaviour and, through a range of targeted interventions and programmes, bring about positive changes in the offender's life with the aim of avoiding further offending. At a minimum, community service provides for the opportunity to pay back to a community the harm done by offending behaviour. Monitoring a convicted offender's movements, whether by electronic means or otherwise, provides neither a focus on rehabilitation in the same way that supervision does nor the security of a prison sentence in preventing further offences. We all are agreed on that.

Section 108 of the Criminal Justice Act 2006 also provided for the use of electronic monitoring for prisoners on temporary release. This provision was commenced by the previous Government. A pilot project indicated that it is only cost-effective in a limited number of circumstances. Electronic monitoring continues to be used in a small number of cases for prisoners on temporary release. Section 11 of the Criminal Justice Act 2007 provided for the electronic monitoring of certain persons admitted to bail. The previous Government also did not commence this section. I note that concerns have been raised about the workability of this section as drafted.

The Minister's preference for serial offenders, such as those charged with burglary offences who are likely to commit further serious offences, is that they should be refused bail and removed from our communities pending their hearing. It is for that reason the Minister has brought forward the Criminal Justice (Burglary of Dwellings) Bill. The burglary of a person's home is a particularly horrible crime and this Bill is designed to keep repeat burglars off the streets and improve the safety of our communities. It facilitates the refusal of bail and tougher sentencing for those 25% of burglars responsible for 75% of burglaries. No amount of electronic monitoring will be as effective as the provisions in the burglary Bill.

In cases where bail is granted, the Minister recognises that the targeted use of electronic monitoring has potential in reducing reoffending while on bail. With this in mind, the Minister is bringing forward new, workable proposals in the new bail Bill to allow the use of electronic monitoring in cases where the prosecution thinks it may be appropriate.

I hope that is satisfactory. I think it is what the Senator is looking for.

Senator Mark Daly

Unfortunately, there were many references to sections 101 and 108, and I will be writing a letter to the Cathaoirleach seeking that when I ask about section 102 or whatever and I, the Minister of State and everybody else goes to the bother of coming to the House, we actually get an answer. If I deleted everything that had nothing to do with my question, there would be a paragraph, but that would be too embarrassing. Section 102 is referred to approximately twice. It is not appropriate.

An Cathaoirleach

Senator Daly well knows the Cathaoirleach has no role to play in what Ministers say when they come to the House or the Ministers' replies to the House.

Senator Mark Daly

I will be asking the Cathaoirleach to write to the Minister and, specifically, to the officials. It is not appropriate that a Minister would be given a reply to give a Member of the Oireachtas which amounts to an answer to a question that was not asked. That is the point I am making.

The reply, even when it referred to section 102, did not answer the question why the section has not been commenced. It stated it is not necessarily the most cost-effective, and prison costs €263 a day. This is an alternative to prison that costs €6.45 and, somehow or other, it is not the most cost-effective way of dealing with this issue, which is a lie.

An Cathaoirleach

A question, Senator.

Senator Mark Daly

I am sure the Minister would agree. It costs €6.45 to put an electronic tag on a person - that is what the mechanism costs - whereas it costs €263 a day to put him or her in prison. The Minister of State was allowed to give a reply to the House that this is not necessarily the most cost-effective way to challenge and change an offender's behaviour.

I will read the alternative - that is what section 102 was - from the Library and Research Service.

An Cathaoirleach

Senator Daly cannot make another speech on this. Has the Senator a question for the Minister of State?

Senator Mark Daly

It notes the section was not commenced and has not been put into operation. Section 102 was an alternative sentence to imprisonment.

I will write to the Cathaoirleach and the Minister of State, Deputy Kathleen Lynch, although it is not her area. I will write to the Minister.

An Cathaoirleach

I have no role in this.

Senator Mark Daly

Most important of all, the Minister of State was allowed to come to the House and deliver this reply. Whatever official wrote it should be brought before the Minister and asked how he or she could allow a Minister to say to the House that spending €6.45 on electronic tagging is not more cost-efficient than the judge's alternative of putting a person in prison. That is a disgraceful answer to allow a Minister to give. I am not blaming the Minister of State because she is only given the research that was done by the official, but it is an appalling answer.

Deputy Kathleen Lynch

I do not understand the argument. Maybe it is something lacking in me. Clearly, one does not just put a tag on a person's ankle. A monitoring process must be put in place. If one reads the Criminal Justice Act and the research, one will see it is as much about rehabilitation as it is about confinement or monitoring, and therefore it has to be a combination of issues.

If that section of the Act was not commenced, that is an issue not for the current Government but for the previous one which brought it in.

I am not justifying the answer in any way. I am just expanding the argument. The Minister for Justice and Equality has initiated the Criminal Justice (Burglary of Dwellings) Bill 2015 and has indicated that it will be part of the process to deal with offenders. That is the Government's contribution. It is clear that action must be taken because people reoffend and we need to deal with that fact. The Senator stated that a tag costs in the region of €6. Tagging burglars is not simply a matter of putting tags on them, there must be a monitoring process as well. If we are serious about changing people's behaviour, because that is what this should involve, there must surely be a role for the probation service to play in terms of engagement with those people.

The solution is not just as the Senator outlined. I do not have in my possession the in-depth details required to answer the question in its entirety. The cost cannot be just €6 or so per tag. We must also take account of the process behind this - which involves monitoring and supervision to ensure a person does not reoffend - because that adds to the overall cost. Things do not exist in a vacuum. I do not necessarily think that tagging is the solution to all burglaries but it is part of such a solution. Equally, I know that a repeat offender would be able to find a way to defeat it because people find ways and means around everything. The Minister has referred to the fact that 75% of burglaries are committed by 25% of burglars and we need to deal with that in a far more comprehensive way. The Senator cannot blame this Administration for something that the Government led by his party did not commence.

Sitting suspended at 11.15 a.m. and resumed at 11.30 a.m.