I welcome the Minister of State, Deputy Finian McGrath, to the House.
Commencement Matters
Immigration Status
I welcome the Minister of State and thank him for coming to the House to deal with this question. In light of the findings of the Court of Appeal on the rights of non-EEA nationals who were in Ireland as students before 2011 and who wish to continue to stay and work here, I would like the Minister for Justice and Equality to state how many cases are awaiting her decision and to make a statement on the issue.
I am referring specifically to the decision of the Court of Appeal, as issued on 15 December 2016, in the case of Balchand and others v. the Minister for Justice and Equality and others. In her decision, Ms Justice Finlay Geoghegan said that the refusal of an application for permission to remain made on behalf of two Mauritian individuals, whose child was born here after they had originally come here as students, potentially interfered with the applicants' right to respect for private and family life under Article 8 of the European Convention on Human Rights. According to the Court of Appeal ruling, the Minister is "obliged to consider" these rights before making a decision on the application for permission to stay here. Ms Justice Finlay Geoghegan said that the Minister "was obliged to consider the Article 8 rights contended for on behalf of the applicants". Mary Carolan's report on this case in The Irish Times in December 2016 noted that, "dozens of other cases were awaiting the outcomes of the two appeals [two appeals were joined together] in which the Irish Human Rights and Equality Commission was involved".
The question I am raising relates to the sequel or the consequence following the handing down of this judgment. How many cases are still awaiting decision? Will the Minister make a statement on the issue? I want to ensure individuals like the members of the Mauritian family at issue in the Balchand case have their full rights considered. The family rights, etc., of their child, who was born here after they had arrived here as students, should be considered. I want to keep an eye on this matter to ensure the Minister's approach is under scrutiny following the handing down of the Court of Appeal decision. I will be grateful for the Minister of State's response.
I thank Senator Bacik for raising this important matter. While it is the responsibility of non-EEA nationals to keep their immigration permission current at all times, the Tánaiste recognises that some former students now find themselves undocumented. As the case referred to by the Senator is being appealed to the Supreme Court, the Tánaiste is somewhat limited in what she can say at this point.
The court ruling came about as a result of non-EEA nationals who previously held student immigration permissions having their applications for new permissions, or variation of the original permissions, refused. The Tánaiste understands proceedings have issued in approximately 70 similar cases. Part of the issue with regard to this complex matter relates to whether existing legislation is sufficiently clear on whether an application under section 4 of the Immigration Act 2004 needs to be made by a person seeking to vary an existing permission, which is current, or whether such an application can be made by a person who is out of permission.
The Court of Appeal judgment raises the issue of whether Article 8 rights under the European Convention on Human Rights should be considered as part of the application process. The State's clear position, which is in keeping with the jurisprudence of the Irish courts and the European Court of Human Rights, is that consideration of Article 8 rights is only required when a person applies to enter the State or when he or she is being considered for removal from the State as part of the deportation process.
Such a consideration would take place under a different statute, section 3 of the Immigration Act 1999, and as part of a fundamentally different process. Prior to 1 January 2011, student permissions, it could be argued, were effectively open-ended. A new regime for full-time non-EEA students commenced on 1 January 2011, which capped at seven years the total time student permission would be granted, subject to certain conditions. The Tánaiste appreciates the Senator’s concerns and input on this matter and further consideration is being given by her officials to the wider impacts of the case. As was outlined at the outset, the judgment itself is currently under appeal to the Supreme Court.
I believe it is important that we raise the wider context and the implications of this case while being conscious that it is under appeal. This case concerns two families because there was a related appeal judgment that was given on the same day in the Luximon case. In the case I spoke about, the Balchand case which is under appeal, the couple involved had a son who was born in Ireland in 2009 and who had lived his entire life in the State. He had never even visited Mauritius - the original home country of his parents - and so on. The Minister of State has clarified for me that there are 70 similar cases in which proceedings have now issued. That is a large number of families who are now, as the Minister of State has said, in a position similar to that of Irish people who are undocumented in America. At a time when we are protesting - rightly in my view - about the unfair treatment by President Trump towards undocumented individuals and towards Irish citizens in the US who are currently in such a difficult and uncertain position, it would behove Ireland to look at its own policy and to look at the wider implications. I am glad the Minister of State, Deputy McGrath has said that the Tánaiste is giving further consideration to the wider impacts of the case. I know that the rule from 2011 capped at seven years the total time student permission may be granted, but that is quite a lengthy period and it is very likely that people - as did the couple in the Balchand case - will set down roots, become fully integrated and have a family here. As pre-2011 entrants to the State, it would be a fair approach to state these are people in respect of whom the application to remain could have been granted. Ms Justice Finlay Geoghegan was very clear that in considering the application as to whether to renew permission to stay, the Tánaiste was bound to consider the constitutional principles and the principles as set out in the European Convention on Human Rights. The judge clearly set it out that it was at that stage of the process when the Tánaiste would be bound, and indeed later in the process. I will say no more, given that the matter is under appeal, but I ask the Minister of State, Deputy Finian McGrath, to bring back to the Tánaiste my concern that in appealing this case, the State and the Government are perhaps overlooking the wider implications and the detrimental and negative impact this sort of uncertainty will have for so many families, potentially 70 families, whose status is now uncertain as a result of the State's appeal.
I totally accept the importance of raising this particular case in light of the broader debate. As I said at the outset, while it is the responsibility of non-EEA nationals to keep their immigration permission current at all times, the Tánaiste and I recognise the issue where some former students now find themselves undocumented. The Tánaiste also recognises there is a need to address the issues highlighted by the court judgment in a structured way that maintains the integrity of the immigration system, while addressing the needs on a case-by-case basis. The history of student permissions is such that the rules changed on 1 January 2011 and consequently we are dealing with legacy issues here. The State’s position, which is in keeping with the jurisprudence of the Irish courts and the European Court of Human Rights, is that consideration of Article 8 rights is only required when a person applies to enter the State or in cases of deportation. I do, however, accept the broader issue also and Senator Bacik made reference to Irish people who are undocumented. I totally take that point and will bring it to the Tánaiste.
The Tánaiste appreciates the Senator’s concerns and thanks the Senator for her input on this matter. As was outlined at the outset, the judgment itself is currently under appeal to the Supreme Court so the Tánaiste is limited in what she can do and say at this stage. I will of course bring the Senator's concerns to the Tánaiste and to the Department of Justice and Equality.
Medical Card Eligibility
Is the Minister of State taking all the Commencement matters?
I am working overtime today.
Obviously.
I am so glad to be here after the past few days.
My motion relates to medical cards, for cancer patients in particular. I will offer one of many examples from people in my constituency who have come to me. In November 2016 I heard from a woman who applied for an emergency medical card. We went to the primary care unit in Carlow. The forms were completed and presented along with a letter from the doctor outlining the diagnosis and the medical history as well as bank statements.
The person started treatment within days of submitting the application. Following the initial application, the medical card section was contacted and asked about the status of this application. We were told that further information was requested. The process is like going for a mortgage. First, those responsible wanted proof of the mortgage and a statement from the bank with details of monthly payments made. This was requested despite bank statements showing the money going out of the account. The officials still needed confirmation that the person was paying the mortgage. A letter from the mortgage protection provider with details of cover and how much was paid monthly was sought. A copy of the car log book and proof of address of place of work was sought to work out travel expenses. A copy of the house insurance policy, including the details of fire and contents cover was sought. Confirmation of payment for insurance cover was sought. A copy of the insurance policy showing cover for fire and contents was sought. Completed medical forms from other members of the family detailing medical information to be completed by the GP were sought. A further letter from the oncologist indicating that he supports the application for an urgent medical card was sought.
This person is still undergoing treatment. Under normal circumstances, sourcing and submitting all this information would take time, never mind during treatment while caring for three children as well as producing all this information.
That information was submitted in November. This week, we were told that if all the information was not submitted by 28 February, the application would be closed. That is a disgrace.
This is the process for what we call an emergency medical card. This is what a person undergoing cancer treatment has to submit. The person in question is in the middle of radiation treatment. She is going up every day to get treatment and she stays over. The cost for car parking is €8 for the day. That is another issue. This is unacceptable.
I have applied for cards for several people seeking palliative care medical cards. That is a separate issue. People can get them quickly and I am aware of that because I have got them. Those involved are very good with palliative care. However, the system is falling down in the case of emergency medical cards and this needs to be changed.
I will outline another bugbear of mine. People who have medical cards still have to pay. Every time a person goes to the doctor for blood tests, that person has to pay €20. That is unacceptable. Let us suppose a person has a medical card and is undergoing treatment. That person has to pay €20 for blood tests.
There is a broader issue at play. I call on the Minister of State to bring this back to the Minister for Health, Deputy Harris, and to ask for emergency medical cards to be issued on the same basis as palliative care medical cards - they are the same. As I said, the woman in question is getting treatment but she has been waiting for four months for her medical card.
I thank Senator Murnane O'Connor for her contribution and for raising this important issue.
While we have made significant progress in the treatment of cancer in Ireland, a cancer diagnosis obviously has a major impact on the patient both physically and psychologically. A cancer diagnosis can also have social as well as financial impacts. The diagnosis often has a significant effect on a patient's family and friends.
I have met many cancer patients and their families during my time in the Department of Health. This has given me a profound appreciation of how difficult and varied the effects of a cancer diagnosis can be.
Eligibility for a medical card is determined by reference to the means, including the income and expenditure, of the applicant and the partner or dependants. Therefore, the legislation was neither designed for, nor would it permit, the granting of a medical card solely or primarily on the basis of a person's medical condition.
In 2014, following considerable public and political controversy regarding the basis on which people’s eligibility for a medical card was determined, the HSE was asked by the Minister for Health to establish an expert panel to examine the range of conditions that should be considered as a basis for eligibility and seek to prioritise such conditions. The report of the expert panel on medical need for medical card eligibility, the Keane report, was accepted by the Government and forms the basis for the current operation of the medical card system. The report explicitly considered the potential for the award of medical cards on the basis of a person's medical condition and recommended that a person's means should remain the main qualifier for a medical card. The panel concluded that it would not be feasible, desirable nor ethically justifiable to list medical conditions in priority order as a means of determining medical card eligibility and that a financial assessment remains the most equitable method of allocating scarce resources in the health sector.
Following the expert group report, a clinical advisory group was established by the director general of the HSE to assist in the development of guidance on assessing medical card applications involving significant medical conditions. Now, as a result of this group's deliberations, the HSE, when assessing a person for a medical card, has procedures in place which as well as looking at income have regard to their overall financial position, including medical evidence of cost and necessary expenses.
The HSE also has a system in place for the provision of emergency medical cards for patients who are terminally ill or who are seriously ill and in urgent need of medical care they cannot afford. Emergency medical cards are issued within 24 hours of receipt of the required patient details. Where a patient is terminally ill in palliative care, the nature of the terminal illness is not a deciding factor in the issue of an emergency medical card in these circumstances and no means test applies. Given the nature and urgency of the issue, the HSE has appropriate escalation routes to ensure the person gets the card as quickly as possible.
To sum up, the HSE is ensuring a more integrated and sensitive approach towards the processing of medical card applications, including those from persons with a diagnosis of cancer involving greater exchange of information between the central assessment office and the local health offices in relation to people’s circumstances and need.
I acknowledge that considerable work has been done in the area of medical cards but there are still concerns. I outlined to the Minister of State, the details being sought by the HSE prior to it making a decision on the awarding of an emergency medical card. Therefore, what he said in that respect is misinformation. It is tough enough for people who are suffering with cancer or who have other illnesses and who are trying to manage their illnesses without having to fight with the HSE to get their entitlements. People's applications for medical card, whose incomes are only €2 or €3 over the threshold for qualification for a medical card, are being refused on a regular basis. Some leniency needs to be shown but that is not happening. I firmly believe that there are people who are genuinely entitled to a medical card but their applications are being refused because their income is slightly over the threshold. However, the issue of emergency medical cards needs to be addressed. I compliment the medical card section of the HSE on the granting of medical cards for those in palliative care. Those medical cards are processed within 24 hours. I know that because I have secured several for people. However, emergency medical card applications are dealt with similarly to normal medical card applications and that is unacceptable.
I accept the Senator's concerns. It is difficult enough for people with serious illnesses like cancer who are in emergency situations without having to take on this battle as well. I will convey that message to the Minister. I agree with the Senator that the granting of medical cards for those who are in palliative care works very well. I will bring the two key issues that the Senator has raised to the attention of the Minister, Deputy Harris. One is the emergency card issue. I agree with the Senator on another point she made. I dealt with a similar case in my constituency last week where there was a lack of flexibility shown. That happens when people's incomes are only €2, €2.50 or €3 over the threshold. I know this is an issue for every Senator and Deputy. The keys issues that I will convey to the Minister are the emergency medical card issue and the flexibility issue.
Services for People with Disabilities
I thank the Minister for being available to deal with this matter.
Over 1,500 people attend day care services in the Cope Foundation in Cork. One good result of the care being given to people with disabilities is that they are living longer. Many parents using these services drive their children, although some of them are in their mid-50s, to the Cope Foundation's facilities in Cork city each day and collect them in the evening. These parents are getting older, however. I know of several families where the parents are in their late 70s and early 80s and who drive their children to the facilities provided by Cope in Cork city. They are coming under more pressure as they cannot drive in the same way as they could before and, sometimes, they cannot do it every day. They are finding there is no support mechanism for them if they stop taking their son or daughter to these facilities. Another issue is if their child is over 18 years of age, no allowance is made for them either.
This is an issue that is beginning to come up more and more. I have come across cases nearly every second week in my constituency clinics. It is a matter which needs to be examined. Can a system be put in place to support those parents who have been so good, in the sense they saved the State significant amounts of money through the years? In one case I have encountered, the person availing of the services is over 50, meaning the parents have looked after their child for over 50 years at little cost to the State.
I thank Senator Colm Burke for raising the issue of transport for people with disabilities and commend him on his work for people with physical and intellectual disabilities. I welcome the opportunity to outline the current position on the issue of transport for people with disabilities attending HSE-funded day services. Over the past 12 months, I have visited and met over 4,000 people with physical and intellectual disabilities in many services across the country. Recently, I visited the Cope Foundation in Cork and met the parents and families of its clients.
The provision of transport to adults with a disability attending HSE-funded day services is not a core health service. I am fully aware, however, of how important transport is for people with disabilities who attend day services. As a general rule, public transport should be used in all circumstances where it is an option. This is in keeping with the principle of mainstreaming with a clear focus on ensuring persons with a disability have access to the normal range of services and participate in community life as far as possible.
It must be noted that, in general, day service users are in receipt of disability allowance and are automatically entitled to the free travel pass, meaning there should be no additional cost burden at an individual level. New developments being put in place to meet the service needs of school leavers with disabilities who require continuing HSE-funded supports each year will be located as close as possible to where people reside, to reduce the travel time for each person and enable them to be more connected with their local community. Funding is not provided to service providers for the transportation of young people to and from day services.
However, when all other options are exhausted and people cannot avail of a day service because they do not have transport to attend, the service provider is advised to use some of the service money to cover the transport costs. This may result in the provision of a reduced quantum of service to the service user. However, it is also my experience that the HSE will do its best to provide transport in certain cases without reducing services.
While day service users in receipt of disability allowance are automatically entitled to the free travel pass, I am also conscious of the fact that the travel pass is not worth much if there are no buses on which to use it. This may be the case in rural areas. I am also conscious of the social isolation which many people with disabilities feel on a daily basis.
In that regard, I am pleased to see that the HSE has committed to establish a high-level cross-divisional working group this year to rationalise the provision of transport and to maximise equitable access and efficiencies. The HSE also intends to liaise with the National Transport Authority and disability service providers to explore ways in which the authority’s services could assist people with disabilities. I understand that the National Transport Authority has a total of 17 transport co-ordinating units called Local Link, which provide safe, secure and reliable public transport services in local and rural areas of Ireland through a combination of scheduled public transport services and door-to-door services. The HSE plans to explore the opportunities these units may provide to people with disabilities to access day services and allow them to fully participate in the social, educational and economic life of their own local communities.
I thank the Minister of State. I appreciate that this is a complicated area. It will be a growing problem and I welcome that a group has now been set up within the HSE. I am concerned about it in that in some cases, the parents will end up having to have their son or daughter admitted into full-time care in a community setting, which is very costly. Then one has a huge cost in that as well. I am concerned that numbers are growing. We need to plan very quickly for it and to do so within the next 12 months. I was delighted by the Minister of State's visit to the Cope Foundation in Cork and to St. Paul's School, which have been providing superb service in Cork. We have been very fortunate in Cork with all the services we have but there are major challenges and we need to look at them.
Finally, the interesting thing with vehicle registration tax is that, while it is available for someone getting a vehicle who has registered a vehicle in his or her own name, there is no allowance of any description for parents who are providing transport for their child. It is a problem they have as well. In this case, a parent who is driving 15 miles each way, morning and evening, to make sure the child can attend a service gets no allowance of any description and has not for the past 25 or 30 years.
I thank Senator Colm Burke for raising this issue. I welcome his comments on the setting up of this group and I accept his point that we need to move on this particular issue on transfer for people with disabilities and that we need to deal with it over the next 12 months. I also want to say something on the strong economic argument which is used regularly with service providers. I came across one service provider recently which gets a grant of €90 million a year and yet it was looking at cutting back transport services to young adults with very complex physical and intellectual disabilities. That is not acceptable to me and we told it to go back to the drawing board and to not cut transport services. We told it that if it wants to do other reorganisation to its finances it can go ahead but to not do that. That goes on.
The Senator made a very strong and important point and my plan is to try to get services in the local community as near to families as possible. The Senator's argument, which I will relay to my officials and the people in the HSE, is that if we do not provide transport for these young adults with these intellectual and physical disabilities and if they go into residential care, they will actually cost the taxpayer more money. That is a very valid economic argument. In addition, the human rights argument - which I have always pushed very strongly - is that the best idea is to try and get services running from their home to the service provider. Children and young adults in rural areas have to be looked at as well. At present, I am looking at and working closely with this group and I am going to deal with this issue. I will deal with the issue of the high cost of transport as well. The Senator mentioned a figure related to the issue of mobility and families who bring disabled children or teenagers around the place. I am considering legislation for transport mobility and there are in the region of 4,700 such people in the wider community. These are all issues that we have to deal with. If we get two or three years to deal with these things, I will be delighted.
I thank the Minister of State and the Senator.
Sitting suspended at 3.05 p.m. and resumed at 3.30 p.m.