Research carried out by my colleague, Deputy Perry, has revealed that thousands of elderly patients in public nursing homes have been illegally charged by this Government since 2001. The situation is that prior to 2001, health boards were legally entitled to seek a contribution from medical card holders in long-term care. In other words, their full eligibility to free inpatient services was reduced and the health board could legally seek a contribution from them. However, for anybody of 70 years or over, the Health (Miscellaneous Provisions) Act 2001 confers full eligibility to free inpatient services. That Act does not allow for eligibility to be diminished or for charges to be levied.

Arising from this information, published today, does the Taoiseach accept that all persons aged 70 years or over in public nursing homes have been illegally charged since 2001? Will he quantify the number of persons affected and the amount of money they have paid over the past three years? For how long have the Department of Health and Children, and successive Ministers, been aware of this illegal charging? Will the Taoiseach arrange that those patients who have been overcharged will be reimbursed from the central Exchequer, rather than from the already seriously overstressed health budget?

I will make three points on this issue. The health strategy points out that it is fair that all those in receipt of publicly funded residential long-term care should make some contribution towards accommodation and daily living costs if they can afford to do so, just as they would if they were living in the community. The current position reflects this. For people availing of public long-stay care, charges can be made under two sets of regulations with regard to inpatient services and institutional assistance, where the patient receives shelter and maintenance rather than treatment. Shelter and maintenance is the term used in the regulation. In deciding the amount to be contributed, health boards have regard to the person's individual circumstances. Charges may be waived if, in the opinion of the CEO of the health board, payment would cause undue hardship. Under the Health (Nursing Homes) Act 1990, health boards may pay a subvention to assist a person in meeting the costs of private nursing care. The Department of Health and Children has established a working group to review the operation and administration of the nursing home subvention legislation.

My second point relates to what has been stated by Deputies Kenny, Perry and others and arises from what the Ombudsman said in his final report of 2003. In his view, once people over the age of 70 were given a medical card they were also entitled to nursing home care. In line with the health strategy, the Department of Health and Children is committed to the preparation of new legislation to update and clarify the whole legal framework for eligibility and entitlement in the health services. That arose out of the Ombudsman's report of last year.

The third point is regarding legality and the issues which arise from that, which Deputy Kenny has raised. The Department is in consultation with the Attorney General on that matter and these issues will be addressed in light of the advice given by the Attorney General.

I bring the Taoiseach back to the central point. I did not raise the issue of the principle of payment of a contribution by pensioners in public nursing homes. I raised the question of whether or not, arising from the Act introduced in 2001, this payment is now illegal. It is an illegal payment. The Government, therefore, cannot operate to a different set of rules. When AIB overcharged, the bank was obliged to pay back its customers. There are a number of precedents for repayments in the drugs repayment scheme and the scheme for nursing home payments to families. Does the Taoiseach accept that the phraseology used in the 2001 Act, over which his Government has presided, means that pensioners over the age of 70, to whom medical cards were issued, have been making illegal payments? Between 8,000 and 12,000 such people could be involved and the amount of money involved could be of the order of €100 million.

Does the Taoiseach accept the payment is illegal? If he does, will he make arrangements for the money to be repaid? On 1 June last the Taoiseach said that customers of AIB must be recompensed in respect of payments. Does he accept that these payments are illegal, will he make arrangements for compensation to be paid to the patients and will he report to the Dáil on his analysis and decision in the matter?

Deputy Kenny wishes me to deal with the kernel of the issue, and I will do so. That determination will be clear and will be reported to the House by the Minister for Health and Children when the Attorney General gives his advice. That is a legal point which must be clarified and when the clarification is given it will be reported to the House.

In line with the health strategy, since the Ombudsman's report of last year the Department of Health and Children is committed to new legislation to update and clarify the whole legal framework and eligibility for entitlements in the health services.

When I saw the reports of the last few days I asked when we are likely to receive the Attorney General's advice. I have not yet received an answer to that question but we will try to get is as soon as possible.