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Dáil
‹ Ceisteanna ó Cheannairí - Leaders' Questions

Nursing home and disability payments scandal

Summary

Deputy Catherine Murphy questioned the Attorney General’s report and what Ministers would examine over the next three months, including possible repayments and comparisons with junior bondholders. The Taoiseach said the issue was historical, urged members to read the report, and said Ministers would review all relevant documents and evidence.

I also express my thoughts and sympathies to the people of Türkiye and Syria, who have been so badly impacted by Monday's devastating earthquakes. The huge loss of life and utter destruction are truly horrific and heartbreaking. We all share that sentiment.

I raise the issue of the Attorney General's report into the nursing home and disability payments scandal. It is not surprising that the Attorney General has provided such a staunch defence of the legal strategy that was devised and endorsed by his own office and successive Governments over many years. What does come as a surprise, however, is how incredibly blinkered the report is. Throughout it, cost containment is repeatedly conflated with the public interest. In summary, keeping costs down is good and screwing over vulnerable citizens is legally sound. Even in the case of the State effectively illegally stealing disability payments from the most vulnerable citizens, the Attorney General tells us there is "no positive legal obligation" to repay those funds.

As the Taoiseach himself said last week, this is a case that does "not have a [legal] leg to stand on". I have been thinking about that line, "no positive legal obligation", since I read it in the report. I must say that I find that really extraordinary. This is a bald admission that the State had no valid legal authority to withdraw the meagre disability payments from extremely vulnerable citizens who were in residential care and no strict legal duty to repay that money, so, effectively, it did not bother. I wonder how that defence would have gone down if the banks had tried to use it, for example, in the tracker mortgages that we have just heard about. I refer to large institutions, with much deeper pockets than the impoverished consumers it ripped off, effectively saying that if those customers thought they were badly treated they should come and sue them individually. Would the Taoiseach have been happy to see the banks adopt that scorched earth approach rather than, and it must be said belatedly so, identifying the customers who were impacted and paying redress as well as the large fines imposed by the regulator? In this case, we have a State behaving with less of a moral compass than the banks, which I find is really saying something.

What the Attorney General fails to grasp is that only a small minority of people has the capacity even to contemplate suing the State. The State would not lose its house at the end of the legal proceedings but those suing might. Irish people do not expect or want the State to force the most vulnerable citizens to litigate to enforce their legal rights and entitlements. We expect the State to defend and vindicate these rights. At the very least, we expect the State to own up to its wrongs and to undo those wrongs. The legal strategy here is not something that is complicated or knowledgeable in terms of the legal formulation.

It was a very simple approach to keep our heads down and hope we get away with it, having ripped off all those vulnerable people. Is the Taoiseach still happy to stand over that strategy having read the defence in the Attorney General's report?

Comment on this
Leo Varadkar The Taoiseach Fine Gael

I thank the Deputy for raising this issue again. I emphasise that this is largely an historical issue. It relates to nursing home charges prior to 2005, which is more than 18 years ago and disability payments prior to 2007 or perhaps even prior to 1996 and largely relates to laws from the 1970s. We do not have all the facts yet - nobody does. As I said last week, we will do whatever is legally required, just and in the public interest.

The Attorney General's report is now published. It takes about 20 or 25 minutes to read. I encourage everyone to read it from cover to cover. The House can debate it tomorrow and I know Oireachtas joint committees will also want to discuss this matter. The Ministers for Health and Social Protection will study this matter and revert to Government with a further report in under three months.

There are some important points from the Attorney General's report which are worth putting on the record of the House. The Attorney General points out very clearly that the State's only interest is the public interest. There is no other interest that the State can have regard to than the public interest. That means taking into account the justice of any claims made by people on the State. It means taking into account taxpayers as well as taking into account those who depend on public services today, such as children in our schools, patients in our hospitals and older people who need home care.

The Attorney General points out that anyone taking a case or defending a case has a legal strategy. Either someone taking a case against the State or the State itself has a legal strategy. That is confidential and the fact that is confidential or secret is not sinister in any way. He also points out that anyone taking a case or defending a case has privilege. It would not be fair for anyone to expect one side to waive privilege if the other is not willing to do so.

He also points out that Cabinet documents are confidential and are protected by the Constitution. Even the Government does not have the authority to release them. He also points out that the State is it is not a normal litigant. I have heard people describe the State as being callous or operating like a company in the way it defends cases. That is not the case. All the time the Government takes decisions do things that it is not legally required to do. We have a 100% redress scheme for mica and for people who live in defective apartment blocks. No court has found, nor would any court find, that the State, central government, is 100% responsible for that.

There are other examples such as the symphysiotomy scheme established by the former Minister James Reilly and followed through by me when I was Minister for Health, which provided a redress scheme even though the women concerned, with one extreme exception, lost all their cases in court. We also have other schemes such as the mother and baby homes institutions scheme, for example, where the commission of investigation found many people responsible for what happened there but only the State has stepped forward to fund a redress scheme.

Importantly, he also points out that in settling it case, it is essentially a compromise. Settling a case does not mean acceptance of being in the wrong. It is done by agreement on both sides. Cases cannot be settled unless both sides agree to settlements. Nobody can be forced to a settlement. They are always free to have their case tested in court and these cases may yet be tested in court.

Comment on this

I am well aware that this strategy has been in place for some years. What exactly will the Ministers for Health and Social Protection be looking at for the next three months? Is it the Attorney General's report? Is it the substance of the issue? Are they looking at identifying individuals who may have been impacted? Are they looking at the possibility of repayments? Exactly what is it? I wonder if the same positive legal obligation was considered when the repayment of junior bondholders was being considered because people are validly making a comparison between the two and how the State treated the two.

Other people feel that this delay-and-deny tactic is repeatedly the State's strategy. For example, over a 20-year period 100 personnel in Casement Aerodrome have prematurely died. It is up to the individuals or their families to do anything. This is about how the State treats its citizens. What exactly will the two Ministers be looking at? Is it just the Attorney General's report or is it more?

Comment on this
Leo Varadkar The Taoiseach Fine Gael

On the issue of junior bondholders, there was a positive legal obligation in many of those cases and a court case was taken which, unfortunately, went against the State in regard to some of those cases.

Leaving that aside, Ministers will look at this in the round. Of course, it will not take them three months to look at the Attorney General's report but they will have to look at many documents going back to the 1970s and 1980s and listen to what the House and what people have to say at the Oireachtas joint committee.

In respect of the disabled persons maintenance allowance, DPMA, payments, it is important to say again that this is an historic issue that relates to the period before 2007, and the partially leaked draft memo did not cover all of the facts. One thing we now know since then is that there were actually three periods involved: a period between 1983 and 1996, when the law was one thing; a period between 1996 and 1999, when the law was another thing; and a period between 1999 and 2007, when the law was different again. That gives an example of how much more complexity and truth there is to this than what has been presented in certain places in recent times.

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