Diúltaíodh suas le 12,000 saoránach den Stát seo, go leor acu faoi mhíchumas trom, ó thaobh an liúntais a bhí i dteideal dóibh mar gheall ar an míchumas a bhí orthu. Diúltaíodh é seo dóibh mar thoradh ar straitéis a bhí fuar, straitéis chalma, straitéis gan chroí, a forbraíodh i gcroílár an Rialtais - Rialtas ina raibh Tánaiste féin mar pháirt agus mar bhall sinsearach. Up to 12,000 citizens of this State, many of them with profound disabilities, were denied their entitlement to a modest allowance paid to them in recognition of their disability. They were denied this as a result of a cold, callous and heartless strategy developed at the heart of government. This was a Cabinet of which the Tánaiste was a senior member as Minister for Foreign Affairs at the time. The decisions the Government took at the time are laid bare for all of us to see in secret documents that have been reported on. The Tánaiste was party to the strategy. He was party to agreeing the strategy as a senior member of the Government and Cabinet at that time.

We now know that in July 2009 the Tánaiste and his Government colleagues were presented with a memo from the Minister for Health and the Minister for Social and Family Affairs. It made it clear the State was unlikely to defend cases by or on behalf of those who had their disability payments illegally withdrawn from them. The memo they were presented with went on to state that a comprehensive trawl could be done of HSE records over the 30 years to determine the level of exposure to the State but the Minister advised the Tánaiste and his colleagues against doing this as it would be unlikely to escape media attention or speculation and could generate further claims that otherwise would not have been made.

The strategy of the Government was to conceal the fact there was no legal basis to denying these payments to persons with disabilities and to do nothing that would give rise to awareness to these individuals of their legal entitlements to a modest allowance in recognition of their disability. The strategy was deliberate, it was calculated and it was developed at a Cabinet of which the Tánaiste was a member to conceal from some of the most vulnerable citizens, namely those with disabilities in the care of the State, their legal entitlements. The following year, in 2010, again while he was a member of the Cabinet, he and his Cabinet colleagues were asked to agree to continue with the strategy. At that time he knew this denial of payments was unlawful and, again, he acceded to this. He was party to the decision and the Government agreed to it. The Tánaiste knew the right thing to do. How do we know this? We can see it in the memo. It is contained there. It was to establish a repayment scheme to right the wrong that was done but the Tánaiste and the Government decided against it. Not only that, they decided to do everything possible to ensure those entitled to these payments would never find out about their entitlements.

It is very hurtful for so many families to find that Government after Government knew these payments were being withheld unlawfully and that a deliberate and cold-hearted strategy was developed at the heart of Government. Will the Tánaiste explain to the House and, most importantly, to those families why he was part of this? Knowing that the legal advice he got in the memo in 2009 was that these cases could not be defended, how does he justify continuing to deny these payments to the individuals and deciding to do nothing that would raise awareness, either in the media or among the wider public, that would alert people to their legal entitlements? Please explain that to all of us.

With regard to the nursing homes issue and the disability allowance, how they evolved was of an historic nature. The fundamental problem was that the public policy was transparent from the outset in respect of disability allowance and nursing home payments, going right back to the 1970s, 1980s and 1990s. Public policy was very transparent in respect of nursing homes. People paid a contribution and so forth. This was by virtue of regulations that had been put into place. Many decades later it transpired that those regulations were not consistent with the primary Act. That was the fundamental flaw. At that time the Government of the day took a decision to retrospectively pay back in a repayment scheme the payments taken from those availing of public nursing homes.

With regard to the disabled person's maintenance allowance, a similar situation pertained in respect of the public policy being very transparent. That allowance was introduced in the first instance to provide for people who were on very low incomes when living independently. Once they went into residential care those payments were discontinued. This carried on for quite a long period and was publicly transparent. A case then emerged. It was the then Minister, the late Seamus Brennan, during the Government to which the Deputy referred, who corrected it. He took the decision that residents would be allowed to retain their domiciliary care allowance in a residential setting or a hospital. This was eventually rectified in the 2000s. By the way, it is something that has not been rectified in Northern Ireland. To this day, someone in a hospital or residential care in Northern Ireland for longer than four weeks gets a reduction. This was a public policy issue. The problem was that again the secondary legislation was wrongly drafted and inconsistent with the primary Act of 1970.

Generally, a Government habitually gets updated, perhaps every six months, on what are called sensitive litigation cases or cases of major litigation. There could be 30 cases at any one time to which the Government is alerted. That list is culled from a further list of approximately 200 cases of litigation against the State in the Office of the Attorney General. I refer the Deputy to the fact that 20 years ago the Government established the State Claims Agency and took medical negligence and personal injuries cases out of the realm of the political arena. The State Claims Agency on behalf of the State decides, rightly or wrongly or insensitively or sensitively, the determination of how the State defends various cases.

The net point in respect of this is that the focus of that Government was to improve substantially disability allowance payments in the 2000s and to use the resources for that generation. That call will always be made. In the past two and a half years, the Government has committed to approximately €6 billion in retrospective payments in three or four areas. Issues will arise and calls have to be made in respect of the needs of the current and future generations in terms of the allocation of resources. There will be good times and bad for public finances, and economies are cyclical. How one allocates these resources is a fundamental issue. At any one time there can be up to 30 sensitive cases before the Government. Ultimately, the Oireachtas and the Government of the day have to make decisions in this respect and not all of them are palatable or in any way desirable.

There was no apology or no admission that the Tánaiste was wrong. Yesterday the Taoiseach stood where the Tánaiste is and said the State did not have a leg to stand on. He said that because we have the memos. In 2009, the Tánaiste was given legal advice as a member of the Cabinet that said the State would be extremely unlikely to be able to defend the case. We have other memos that state the regulations were without legal foundation. They were unlawful. Let us cut to the chase. These individuals were unlawfully denied their payments by the State. That is crystal clear now. The Tánaiste was a member of the Cabinet that agreed to this strategy. He was asked in 2010 as a member of Cabinet to continue to agree to the strategy of the HSE denying all claims for back payments, despite the fact he knew they were unlawful at the time.

He should not try to fob it on the State Claims Agency or allocations of resources. This involves people who, in some cases, have profound disabilities who were in the care of the State. They expect their Government to stand up for them and advocate for them. The Government preyed on their vulnerability and stated it would not set up a repayment scheme unless the floodgates opened and more claims came forward. How does the Tánaiste justify this? Does he accept he was informed in 2009 and 2010 on these matters? How does he justify, knowing that it was unlawful, continuing to deny these individuals their payments and not taking any action even to identify the exposure of the State in case these vulnerable citizens became aware of their legal entitlement?

It is my understanding, by the way, that the 2009 memo was withdrawn from that Cabinet meeting. It would have been circulated but it would have been withdrawn, so there was no decision at that Cabinet meeting-----

You were informed. You got it.

-----in respect of that legal strategy but the more fundamental point is, as I said, there is a range right now of up to 30 litigation cases that will come before the Cabinet in an updated form.

How many of them are-----

That is a culling of 200 cases. Let us be honest that all of them, or quite a significant number, will be sensitive. As an Opposition Member, if the Deputy is presented with any one of them I know what his answer will be: to pay it out 100% because that has been his stock answer the whole way for the last three years.

When you are told it is unlawful-----

Deputy-----

There will be legal advices coming but the key point that ultimately we all have to decide-----

The legal advice is the Government has not a leg to stand on.

-----in respect of-----

The legal advice is it was unlawful.

Through the Chair.

Are we saying-----

Yes.

-----going forward we have an infinite resource base and that the current taxpayer and current generations will consistently have to pay for historic mistakes-----

We want to know why the Government denied them.

-----or historic wrongs?

It was told they were unlawful.

I am putting the question to the Deputy.

How about not acting illegally in the first place?

Please, through the Chair.

I would argue that is a key, fundamental point in terms of the allocation of resources.

How about not acting illegally?

It is not fobbing anything off, Deputy, it is just putting the reality that-----

We know where Government allocated the resources in the 2000s. It gave them to the banks.

Deputies, please. A Thánaiste, táimid thar am. Go raibh maith agat.

It is the reality that confronts any Government at any particular time as we move forward.

The Government put €30 billion into Anglo in the same period.

Go raibh maith agaibh.

Which the Deputy supported.

It was unlawful. What the Government did was unlawful.

Deputy Doherty voted for it.

The Tánaiste will not even apologise and accept what the Government did was unlawful.

The Deputy has not apologised for it.

He supported it.

Could we please do it through the Chair, with a little respect?

We move on. Ag bogadh ar aghaidh anois go dtí Páirtí an Lucht Oíbre agus An Teachta Bacik.