TWISTS AND TURNS IN THE STATE’S PLOY TO CONCEAL LIABILITIES
WHO is impacted by the State’s secret legal strategies to conceal the extent of its liabilities on historic long-stay care and disability payments?
1. NURSING HOMES:
The Health Act 1970 entitled all people in the State to free longterm care in public institutions. The diversion from this law creates two separate but related legal issues.
The first is related to people in public nursing homes being unlawfully charged for aspects of their care. A compensation scheme was eventually put in place in 2006 and €450million was paid out to 20,303 people.
The current controversy relates predominately to people with medical cards who were in private nursing homes.
In 2010, hundreds of families who were excluded from the compensation scheme sought to sue the State. Ombudsman Emily O’Reilly published a damning report based on more than 1,000 complaints from those improperly charged. In 2011, faced with a potential liability of €12 billion for the charges which spanned 30 years, new health minister James Reilly circulates a top-secret memorandum. Based on advice from attorney general Máire Whelan, the government, knowing it was unlikely to win any case, adopted a confidential containment policy of secretly settling cases to prevent more claimants coming forward. The policy was successful and cases began to dwindle.
This week, Taoiseach Leo Varadkar said that the State never admitted liability and that there was never a test case to establish the State’s liability.
However, there was no test case because of the State’s legal strategy was to settle cases to avoid losing a test case.
In the Dáil this week, the Taoiseach defended the strategy, saying it was legally ‘sound’ and that if he was asked to sign off on it while in office, he would have.
The Attorney General Rossa Fanning is preparing a review of the policy for Cabinet when it meets on Tuesday.
2. PEOPLE IN INSTITUTIONAL CARE IN RECEIPT OF DISABILITY PAYMENT:
In the 1980s, regulations were introduced to stop the payment of maintenance allowances to people with disabilities living in residential care. The thinking of the State was that the payment was due to cover costs associated with accommodation and subsistence, and this was being met by the State in these cases.
In late 2008, the State settled for €60,000 a case taken on behalf of a woman whose allowance ceased when she was admitted to a psychiatric facility in 1983.
The legal advice was that the regulations were unconstitutional and that the State had little chance of defending claims against them. A secret Government memo obtained by RTÉ estimated that between 4,000 and 10,000 people could be impacted and the liability to the State ranged from €350million to €700million.
In the Dáil on Wednesday, Mr Varadkar said the State ‘didn’t have a leg to stand on’ legally.
3. DISABLED PEOPLE IN SECTION 39 RESIDENTIAL CARE SETTINGS:
In addition to those in nursing homes, those in Section 38/39 State-funded voluntary residential care also argued they were entitled to have their care paid for.
A 2011 secret memo obtained by the Irish Daily Mail shows that a HSE appeals officer sampled three files from 515 appeals from people who had been denied reimbursement for their care in the facilities and found them all to be eligible.
The department and the HSE lodged three appeals against the decision by the HSE’s appeals officer. However, legal advice that the appeal would not be successful led to the case being dropped. The Oireachtas Public Accounts Committee was told by Sinn Féin TD Matt Carty that subsequent financial statements for the HSE’s annual accounts show that €20million was made available for what appears to be compensation payments to the 515. ‘On a worst case scenario, the HSE estimates a potential liability of some €360million,’ the secret memo states. However, despite an admission of liability, the HSE has refused to say whether it contacted other eligible people to inform them of their entitlement. The document also shows that new appeals likely did not arise because of advice from the HSE. ‘Claims rejected under the Repayment Scheme were not appealed or no claims were made under the scheme, probably on the basis of advice from the HSE that the payments did not come within the definition of recoverable health charges,’ it states.